Tue 27 Jan 2009 01:12:43 PM PST
What should a Fair Contract Mandate require?
Thinking some more about what a fair contract mandate for government software licenses would mean.
First of all, a fair contract mandate probably should not just encode some existing free software definition into law. Since running a government and putting together the Debian distribution are two different things, the mandate might allow some terms that wouldn't pass muster with the Debian Free Software Guidelines, and vice versa. For example, a Fair Contract mandate might allow a vendor to supply a Free conversion utility for the program's data files and a fallback code escrow plan as an alternative to making the program itself DFSG-free.
Second, a computer program and the contract under which it is offered are not indivisible. A company could easily license the same program under a proprietary software EULA to its current customers, and under a fair contract to the goverment. At the scale at which the government buys software, it doesn't make sense to talk about "proprietary software" and "free software." Companies do all kinds of paperwork to sell to the government—why not an alternative software license?
Finally, any real-world fair contract mandate will have to have exceptions, for cases in which a software company refuses to participate in the fair contract process but some government customer decides that its product is essential. But this has to be handled like the no-bid deals for Halliburton—with as much transparency as possible, and Fair Contract replacement if there's a long-term need.
In the long run, as the software industry matures and more and more functionality is available in a commodity form, industry will have to accept a shift in power towards its customers, and rely more on delivering real value than on making a quick score.