Please refer to a legislative Bill of South Australia available at http://www.linuxsa.org.au/oss-bill/open-source-bill.pdf [extract given at the bottom of this posting]
Most of the operative words in the State Supply (Procurement of Software) Amendment Bill 2003 Bill would be very familiar to RMS and those in the free software movement for a long time, and are found in the GNU Project documentation. If the first and last lines of clause 17A(2) use the expression "free software" instead of "open source", it would be more true, direct, straight and avoid future inconveniences.
We read the words in law in their context and historical setting.
The History of the Open Source Initiative (OSI) web page says:
"The "open source" label itself came out of a strategy session held on February 3rd 1998 in Palo Alto, California. The people present included Todd Anderson, Chris Peterson (of the Foresight Institute), John "maddog" Hall and Larry Augustin (both of Linux International), Sam Ockman (of the Silicon Valley Linux User's Group), and Eric Raymond. ..."
The OSI faq answers: How is "open source" related to "free software"?
"The Open Source Initiative is a marketing program for free software. It's a pitch for "free software" on solid pragmatic grounds rather than ideological tub-thumping. The winning substance has not changed, the losing attitude and symbolism have. See the discussion of marketing for hackers for more."
The Open Source Case for Hackers argues:
"Mainstream corporate CEOs and CTOs will never buy "free software." But if we take the very same tradition, the same people, and the same free-software licenses and change the label to "open source" - that, they'll buy"
I buy this argument, wholly.
But, the apprehension that we will read "free" or "open source" literally is unfounded. For instance, we understand "judicial review" in its historical and rational context, and not merely the content of just two words. Using the expression "free software" instead of "open source" will avoid needless back tracing. We ought to spare the future generations, of looking into the Open Source history and then again look into the GNU Project history in a round about way.
While initiating the GNU Project, RMS wrote:
"From: RMS%MIT-OZ@mit-eddie Newsgroups: net.unix-wizards,net.usoft Subject: new UNIX implementation Date: Tue, 27-Sep-83 12:35:59 EST Organization: MIT AI Lab, Cambridge, MA ....
"I consider that the golden rule requires that if I like a program I must share it with other people who like it. I cannot in good conscience sign a nondisclosure agreement or a software license agreement.
So that I can continue to use computers without violating my principles, I have decided to put together a sufficient body of free software so that I will be able to get along without any software that is not free.
..."
The reasons for free software are clear enough from the start.
The GPL together with the GNU Project and philosophy justify, require and warrant the use of the word "free software" in such legislation.
We could ignore the South Australian Parliament Bill, because its scope is confined to the State of South Australia. But in the legal field, we often see a cascading effect and it is more likely that other legislation will follow the same style. It is therefore important to set the correct and right precedents from the very start.
Regards, K. Ramanraj.
---------------------------------------------------------------------- Extracts: The Parliament of South Australia State Supply (Procurement of Software) Amendment Bill 2003.
--------------------------------------------------------------------- Principle applying to the procurement of computer software 17A.
(1) A public authority must, in making a decision about the procurement of computer software for its operations, have regard to the principle that, wherever practicable, a public authority should use open source software in preference to proprietary software.
(2) In this section-
"distribute" means distribute for free or on payment of the reasonable costs of distribution;
"open source software" means computer software the subject of a licence granting a person a right-
(a) without any limitation or restriction, to use the software for any purpose; and
(b) without any limitation or restriction, to make copies of the software for any purpose; and
(c) without any limitation or restriction, to access or modify the source code of the software for any purpose; and
(d) without payment of a royalty or other fee, to distribute copies of
(i) the software (including as a component of an aggregate distribution containing computer software from several different sources); or
(ii) a derived or modified form of the software, (whether in compiled form or in the form of source code), under the same terms as the licence applying to the software;
"proprietary software" means computer software that is not open source software. ----------------------------------------------------------