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A leaked letter to the European Commission has revealed the extent of lobbying by proprietary software groups to prevent the widespread adoption of open-source software.

Sent in response to a recent report on the role of open-source software in the European economy, Microsoft-funded pressure group, the Initiative for Software Choice (ISC) warned of potentially dire effects if too much encouragement was given to open source software development.

Any action by the EC would "disrupt the entire software eco-system" and the report itself looked "more like a marketing document than a serious survey", according to the letter - written by Hugo Lueders, director of the European branch of the ISC, addressed to Mrs Francoise Le Bail, the deputy director general of the European Commission's industry arm, and provided to Techworld.

You can view the entire letter here [pdf].

The ISC is an organisation created to oppose government efforts in Europe, the US, South America and elsewhere, to give preference to open-source or open standards-based systems. According to critics such as Bruce Perens, the ISC largely pursues a pro-Microsoft agenda, though the group itself emphasises that it has more than 300 members.

Lueders sent the letter on 10 October to leaders of the Commission's Directorate General for Enterprise and Industry, in response to an EC-commissioned study into the role of open source software in the European economy (referred to by Lueders as Free/Libre/Open Source, or FLOSS).

In the letter, he criticised the study as biased and warns that its policy recommendations, if carried out, could derail the European software economy. The report, titled "Study on the Economic Impact of Open Source Software on Innovation and the Competitiveness of the Information and Communication Technologies (ICT) Sectors in the EU", found that open source plays a positive role in the economy and recommended its development be encouraged through measures such as tax credits.

Biased?

Lueders said the report seemed biased, since it paid little attention to the non-open source economy. "Balance in this regard is missing... making the study look more like a marketing document than a serious survey," he wrote.

The EU shouldn't encourage open source development, he argued. First of all, it's unnecessary, since open source is already successful - the report notes that 40 percent of companies are using open source, a figure expected to grow by 20 percent a year. In any case, if open source isn't more widely used, it isn't for the Commission to say that that is a bad thing, since the market should be left to make its own decisions, according to Lueders. "In practice the market so far has largely opted for the proprietary model, a choice which should not be ignored, regardless of the purported advantages that the FLOSS system offers," he wrote.

Those in favour of encouraging open source say that market decisions aren't enough to result in a healthy economy, since proprietary software often locks users into particular choices.

Lueders argued that open standards - those that don't require a licence to implement - aren't necessarily such a great thing. Rather, "a variety of different standards" should be maintained for the market to run most efficiently. That includes both "licensed and non-licensed (FLOSS-friendly) standards (i.e. non-RAND standards)". Any action that could dislodge non-open-source-friendly standards "would significantly disrupt the entire software ecosystem", Lueders argued.

The RAND issue

The issue of standards licensed under RAND (reasonable and non discriminatory) terms has been key to the ongoing Microsoft anti-trust negotiations with the Commission. As part of its anti-trust remedies, Microsoft has been required to license Windows communications protocols, and so far has only licensed them under RAND terms, meaning they can't be implemented in open source projects such as Samba. Open source groups and the Commission have been pushing Microsoft to use non-RAND terms.

Lueders said the report's recommendation to use tax credits to encourage open source development "seems extreme", since it would distort the market and would be difficult to enforce. In any case, open source developers get enough economic encouragement as it is, he wrote, since, as the report notes, more than half of open source developers now earn income from their open source activities.

"With this in mind it is hard to see the need for considering the development of FLOSS as a 'charitable donation to society', as suggested by the report," Lueders wrote. Instead, the ISC Europe recommends allowing developers using public funds to choose what type of licence to use.

Like proprietary standards, intellectual property rights (IPR) shouldn't be tinkered with, Lueders said. "Many of the proposed policy recommendations as identified within the report could further weaken IPR throughout Europe, potentially deflating venture capital levels and EU innovation," Lueders wrote.

All lobbyists are not the same

ISC shares its physical address - 6 Rond Pont Schuman in Brussels - with another lobbying group, CompTIA, which was one of the main groups lobbying for the controversial patent directive thrown out by the European Parliament last year. CompTIA has also lobbied against measures in favour of open standards and anti-trust measures against Microsoft. Lueders is also European head of CompTIA.

CompTIA justified its support for the failed patent directive on the grounds that it would only make minor adjustments to the European patent system, such as making it more consistent. Critics of that directive said it would have made software patents widely enforceable in Europe, leading to US-style software patent warfare. The Commission is currently pushing a measure called the European Patent Ligitation Agreement (EPLA) that critics say would have a similar effect. CompTIA is in favour of the EPLA [pdf].

In the ISC letter, Lueders criticised the Commission for giving the ISC only 10 days to respond to the report. "From this, one might surmise that the Commission is intolerant to opposing comments," he wrote. He accused the Commission of engaging in a "closed process" that limits input from dissenting points of view: "We perceive this ironic lack of transparency - i.e., open source but closed process - as becoming more widespread."

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