Those tools are:

ParlTrack – “combines dossiers, MEPs, vote results and committee agendas into a unique database and allows the tracking of dossiers using email and RSS. Most of the data displayed is also available for further processing in JSON format. Using Parltrack it’s easy to see at a glance which dossiers are being handled by committees and MEPs.”

Pippi Longstrings – lets you keep track of blocks of texts and standing expressions as they get copied and pasted from one policy document to another.

Political Memory – run by La Quadrature du Net, it provides a “toolkit for finding information about Members of European Parliament (MEPs), including contact info and votes related to Internet issues.”

These tools are wonderful, based on Free Software, and developed and run by very dedicated people. They’re very good at collecting data from the parliament’s own website and a variety of other sources. But it’s a shame that we even need them. The European Parliament is a body that is supposed to represent us all. Information about policy decisions that affect us all should be made publicly available by default.

Europe’s citizens should not be forced to scavenge for information that they have a right to.

I’m just back from LinuxCon Europe in Prague. Linux Foundation had invited me to come over and speak about current policy issues in Free Software.

Here’s what I covered:

• That old favourite, software patents. They’ve always been a nuisance and an unmitigated economic disaster. But recently, patent litigation has acquired a new toxic quality. These days, software patents provide a means for corporations to fend off competitors. Apple’s legal campaign against Android is one example. Microsoft’s ongoing extortion racket (aka licensing deals for a product Microsoft had no hand in creating) are another. This is why FSFE has worked hard this year to prevent even more software patents from falling into Microsoft’s hands. We had a lot of success with the Novell sale. The Nortel patent deal is still up in the air, but we’re continuing to work with competition authorities.
• The SAS vs WPL case, which hasn’t gotten a lot of attention so far. Business analytics software giant SAS sued a small UK company, World Programming Limited (WPL), for copyright infringement. WPL had reverse-engineered SAS software, so that users could run the scripts they had created for SAS on WPL’s (presumably much cheaper) software. SAS argued that in doing so, WPL had infringed its copyright on interfaces, functions and its programming language. That’s interesting, because none of these things are actually copyrightable!
  Accordingly, the UK judge ruled that WPL had done nothing wrong. But since he felt the question was of fundamental importance, he asked the European Court of Justice (ECJ) to decide on the matter. We’re expecting a decision for the end of this year. If the ECJ decided that interfaces, functions, and programming languages are indeed covered by copyright, we’d be looking at a fecoventilatory collision of considerable scale. For example, Microsoft could sue LibreOffice for copyright infringement. Not a pretty prospect. To avoid this, it’s essential that the ECJ judges understand what’s at stake.
• SecureBoot. The topic has been lurking in the background for a while, and has now hit center stage. After FSF published a statement (go sign it), now there’s a (LWN article, statement by Canonical / Red Hat [pdf], Linux Foundation White Paper ). Basically, the question is whether the upcoming successor of the BIOS standard will  turn our general-purpose desktop and laptop computers into something as locked-down as the iPhone. The outcome is very much open, and the battle is on.

Besides these focus topics, I also mentioned a few other things we’re currently working on at FSFE. The European Commission has got it into its head that “cybersecurity” can be improved by outlawing tools that can be used to breach computer systems. This not only shows a touching faith in the power of law over reality; it also could mean that basic security audit tools such as nmap or wireshark are outlawed. It’s a badly drafted proposal, and we’re in the process of telling the European Parliament how to do it better.

Public procurement continues to be a problem. Practices that effectively exclude Free Software are widespread. These things hurt competition in the market, make innovation more difficult, and waste taxpayers’ money. We’re talking to public bodies and governments around Europe, pointing out these problems and advising on how to do it better.

Finally, I mentioned Horizon 2020, the European Union’s upcoming framework program for research and development. (If you’re involved with any European-funded project, this concerns you. It also does if you pay taxes.) From 2013 to 2020, the EU is going to spend 80 billion Euro on research and development. We would like to make sure that the results of this research are made available in a way that lets European citizens and companies benefit from what they’ve paid for with their taxes.

The conclusion is that while Free Software is winning on technology, we need to get stronger on policy. Free Software companies, developers and users need to be speak up more loudly for their interests. Free Software has grown into a huge industry. That’s great. But it also means that we’re increasingly being dragged into the nasty games that corporations play with each other. This is a natural consequence of Free Software’s success, and there’s no way to avoid it. So we need to get better at making our voices heard. At FSFE, we’ve been doing this for a decade. To support us, you can donate or become a Fellow.

WIPO building, Geneva. Pic by Flickr user melanieandjohn, cc-by-nc-nd

Since 2004, the Free Software Foundation Europe is pushing at WIPO for a better global knowledge order. Our most important demand is that when it comes to copyright and patents, the benefits should be weighed against the cost. Many member states and the (extremely strong) industry lobby at WIPO portray these artificial monopolies on ideas as an end in themselves. In reality, copyright and patents are just two tools out of a whole toolset to promote innovation and creativity.

(If you happen to understand German, here is an interview (.mp3; sorry, no .ogg available) on the subject that I did with a German radio station today.)

Unfortunately, the current trend at WIPO is in the opposite direction. We had high hopes for the new Director General Francis Gurry, who took office in 2008. He took some steps in the right direction. For example, he hired a Chief Economist for the first time, tasked with investigating the reality in WIPO member states and assessing the effects of the rules that WIPO makes. (Yes, you read that right: There was nobody at WIPO doing that before then. No kidding.)

By now these hopes are out the window. Gurry’s remark in June 2011 that the World Wide Web would have been better if it was patented were just the final proof that like those before him, he cares only about maximising the reach of monopolies on ideas. A remarkable triumph of ideology over evidence, indeed.

So at FSFE we will have to keep pushing at WIPO. Things there move slowly, but with enough help, we can push them in the right direction: Towards a better knowledge order for all. Your support and help with this are very welcome.

The EC had taken the decision to migrate in a closed-door meeting on December 15, 2010 (see New York Times, Jan 26, 2011). At the Free Software Foundation Europe, we have three concerns about this move: That this move will drive the EC into even greater dependence on Microsoft’s products; the lack of a public call for tender; and the migration’s effects on the Commission’s credibility with member states.

Even greater lock-in

In the Commission’s answer to Staes, EC Vice-President Maroš Šefčovič argues that “[t]he Commission does not rely on (or is locked into) one single software vendor”, citing the fact that the Commission’s IT infrastructure uses software from many different vendors.

But this answer misses the point. The real question is whether the EC is locked into Microsoft’s “office automation platform” (as the Commission calls it). According to the Commission’s answer, that is clearly the case.

In an annex to its reply to MEP Staes, the EC describes three different contracts which it has awarded. Two of those contracts were made without a public call for tender. That can be done in certain circumstances, but it needs to be justified. Here is the EC’s justification for going straight to Microsoft:

A change of supplier would oblige the contracting authority to acquire equipment having different technical characteristics which would result in incompatibility or disproportionate technical difficulties in operation and maintenance.

Translation: Switching to a different vendor is just too hard. If you need a definition of lock-in, look no further. But just to make sure we get the point, the EC adds this justification for awarding another contract directly to Microsoft, for 44.7 million Euro:

The contract can be awarded only to the selected economic operator for technical reasons, or for reasons connected with the protection of exclusive rights

I don’t know what the Commission calls this. I call it a crystal clear instance of vendor lock-in. Lock-in is relative, not absolute. The more difficult and costly it is to change your software supplier, the more locked-in you are.

This is what Neelie Kroes, Europe’s Commissioner for the Digital Agenda, meant when she said:

After a certain point that original choice becomes so ingrained that alternatives risk being systematically ignored, no matter what the potential benefits. This is a waste of public money that most public bodies can no longer afford.

No public call for tender

While lock-in is a problem that troubles many organisations, our next concern is quite specific to this case: We believe that the European Commission should have put out a public call for tender when it wanted a new software platform. Instead, the EC simply declares that the move to Windows 7 is just an “upgrade” – just a newer version of the same product.

If “it’s just an upgrade” becomes acceptable as an excuse to ignore the competition and cozy up to a single supplier, then Europe’s market is in trouble; and not just the one for software. Imagine a local administration that decides to have the town’s main street repaved by the same company that built it in the first place, saying that they’re just “upgrading” the road surface. No new competitor would ever get a foot in the door. Public bodies would hardly ever have to hold competitive bidding procedures for any type of product or service they’ve bought before. This simply cannot be right.

The foundation of Europe’s procurement rules, Directive 2004/18/EC, says that those rules are intended to guarantee the opening-up of public procurement to competition. But it looks like in this instance, the EC has found a way to sidestep that goal, letting inertia (let’s be kind here, ok?) take precedence over competition and long-term value for Europe’s citizens. The Commission itself feels the need to emphasise that “it always complies with public procurement legislation”. We’d certainly hope so.

It doesn’t help that the EC is obviously confused on the commercial nature of Free Software when it uses “open source” as the opposite of “commercial software”. Some people in the Commission seem to believe that there is no money to be made with Free Software. The many companies that have built their business on software freedom would certainly argue otherwise.

The contracts that the EC is entering into for the migration to Windows 7 depend on an older agreement: The EC’s 2007 “Large Account Reseller Microsoft Products” contract with Fujitsu Siemens. The tender notice puts Microsoft’s brand name front and center. That doesn’t chime so well with the rules in Directive 2004/EC/18, Art. 23.8:

Unless justified by the subject-matter of the contract, technical specifications shall not refer to a specific make or source, or a particular process, or to trade marks, patents, types or a specific origin or production with the effect of favouring or eliminating certain undertakings or certain products.

It’s hard to argue with a straight face that there’s no way to describe the software that the Commission was looking for without mentioning a particular “make or source”. Indeed, the EC itself manages to find a synonym in its reply to MEP Staes: it’s all about an “office automation platform”. See, that wasn’t so hard. So why does the EC feel comfortable relying on the 2007 contract, if it is tainted by the original sin of mentioning a brand name?

From the Brussels grapevine, we hear that the Commission’s legal services have had a long, hard look at the decision to migrate, and eventually gave a green light, saying that this course of action was possible under the present rules. If that is the case, our conclusion has to be that the rules have loopholes the size of barn doors. Those loopholes need to be closed.

Fortunately, the Digital Agenda promises a step in this direction. In section 2.2, it says that the Commission will

Issue a Communication in 2011 to provide guidance on the link between ICT standardisation and public procurement to help public authorities to use standards to promote efficiency and reduce lock-in

What about the EC’s credibility?

This leads to our third concern: that this move will hurt the EC’s credibility. The Digital Agenda has noble ambitions. But its implementation depends on the goodwill of the EU’s member states.

The EC’s answer to the MEP’s question says that an OSOR guideline on public procurement is not an official Commission position. That may be so. But the Digital Agenda certainly is an official communication of the European Commission. It’s fair to use it as a yardstick to measure the Commission’s actions.

On that measure, the EC’s actions clearly fall short of its proclamations. The Digital Agenda talks about “help[ing] public authorities to use standards to promote efficiency and reduce lock-in”. That is exactly what a migration to Windows 7 doesn’t do.

Which is why we’re worried about the implications for the valuable document that is the Digital Agenda for Europe. Why should the member states bother to overcome resistance to change in their own bureaucracies, when even the European Commission blatantly disregards its own guidelines and recommendations?

It would have been nice if besides not breaking its own rules, the EC had gotten round to showing the tiniest bit of leadership for Europe’s public sector through its own actions.

Question time

In sum, the EC’s reply leaves open more questions than it answers. It would be interesting to hear the Commission’s views on the four points below in particular:

• The Commission declares that it is not locked into Microsoft’s products. Why then, in its answer to MEP Staes, does the EC argue that using an alternative supplier would bring “disportionate technical difficulties” (Contract 2 in Annex 1 to the EC’s reply), and that “[t]he contract can be awarded only to the selected economic operator for technical reasons, or for reasons connected with the protection of exclusive rights” (Contract 3)? If the EC is not in fact locked into Microsoft’s office automation platform, why did it not issue a public call for tender?
• The EC argues that the new Interinstitutional Licensing Agreement
  (ILA) involved no cost. At the same time, it awards a 44.7 million Euro service contract to Microsoft without a public call for tender. Can the Commission explain this coincidence? If there is a connection between the two contracts, what is its nature?
• If the Commission holds the present migration to Windows 7 to be merely an upgrade, rather than the acquisition of a new product: what would be the minimum threshold of novelty in a product above which the EC would consider it necessary to launch a procurement action?
• How does the Commission reconcile the course of action it has chose for this migration with the Digital Agenda’s demand that “Public authorities should make best use of the full range of relevant standards when procuring hardware, software and IT services” (section 2.2.2)? If a divergence is identified here, what does the Commission believe will be effects of that divergence on Member States’ implementation of the Digital Agenda?