Issue #14
September 2006

  • 1.Editorial: Brazil's Constitution wants Free Software in the Government

  • 2.Fight campaign against DRM

  • 3.FSFLA in the media

  • 4.Events

  • 5.Participate in FSFLA

1. Editorial: Brazil's Constitution wants Free Software in the Government

The Brazilian state of Rio Grande do Sul was one of the pioneers in legislating for Free Software adoption in the public administration, with law number 11871 [LAW] passed in December 19, 2002. The law established that the public administration ought to use preferentially "software that is open, free from proprietary restrictions to its cession, modification and distribution."

The law is being challenged in court as unconstitutional [INI], with support from Amici Curiae that have historically sided with proprietary software in Brazil [AC1], and the law was suspended in a federal court in spite of Union's legal advice that shot down all of the arguments [AGU].

FSFLA is now trying to join the case as Amicus Curiae as well, with help from organizations already established in Brazil, to correct some mispresented arguments as to what Free Software means, to point out actual problems in the law related with its definition of `open software´, and to argue that the Brazilian Constitution already grants Free Software, even if implicitly, the preference by the public administration that the law grants explicitly.

Since most of the constitutional principles used in our arguments are mainly common-sense principles for the public administration, we expect them to be available in many other legal systems, which is why we've translated the paper, in an attempt to reach a wider audience.

The law

The law defines "open software" according to the 4 freedoms of the Free Software definition, except for a minor but very significant mistake: it states that no restriction whatsoever must be imposed to the exercise of the freedoms. This unfortunately fails to grant preference to most of the existing Free Software, since even the most liberal licenses do impose restrictions such as keeping the copyright notice intact, or using the same license for distribution of derived works. As long as people keep following the spirit of the law, granting it preference even where the law fails to do so, this shouldn't be a major problem.

It is worth pointing out that there are cases in which the law permits non-Free Software, with justifications such as that the non-Free Software has well known advantages over competing programs, yielding a better return of investment for the public administration; and when the use of the Free program causes incompatibilities with other programs used by the administration.

The attack

As it turns out, this law is being challenged in court as unconstitutional, under case number 3059/03. The arguments presented in the initial filing [INI] are that state laws cannot regulate public tenders, since such regulation is reserved for the Union; that the law failed to respect the principle of isonomy (equal distribution of rights and privileges) towards licitants; that the adoption of Free Software would infringe on the principles of efficiency and economy; and that such laws could only be proposed by the Executive power, never by the Legislative power.

Even though the Union's legal counsel advised that all of the arguments were faulty [AGU], a primary injunction was granted by the federal Court where such cases are handled, and the law is currently suspended.

Meanwhile, ABES (Brazilian Association of Software Businesses) and ASSESPRO (Association of Brazilian Businesses on Information Technology, Software and Internet), the organizations behind most campaigns against unauthorized software copying (software piracy [SPI], as they put it) in Brazil, and have been on record against Free Software, filed a petition [AC1] to be accepted as Amicus Curiae for this case.

Their arguments against the law start by presenting what they mistakenly claim to be fundamental differences of nature between proprietary and Free Software, stating that the former is "intended for commerce, have closed sources and are protected by copyright," whereas the latter have "academic origins, open sources and permit modification, reproduction and free distribution," thus mingling together two orthogonal dimensions: proprietary vs. free and commercial vs. non-commercial, and confusing the freedoms respected by Free Software with the mere availability of source code implied by the nearly-synonym term "Open Source Software."

Then they go on to argue about the lack of warranty for Free Software, as if commercial transactions involving Free Software didn't impose legal requirements identical to those involving any other kind of software; and many other fallacies against Free Software that I'm sure you've heard before. They wrap up by repeating arguments that support 3 out of the 4 claims in the initial filing.

Our response

FSFLA, with support from entities already established in Brazil, is working to file a balancing Amicus Curiae petition. To such end, we wrote a position paper [FSF] in which we argue that the Brazilian Constitution already establishes principles that are more than enough to grant Free Software the preference given by the suspended law, and that, if the law is at fault, it's not because of the arguments presented by its opponents, but because its Free Software definition is flawed. This does not make the law unconstitutional: it just makes the law inoperant, although in practice it still accomplished its stated mission when its spirit was followed.

Our arguments are based on the four freedoms of the Free Software definition:

(#0) to run the software for any purpose,

(#1) to study it and adapt it to your needs (requires source code),

(#2) to redistribute the software the way you received it, and

(#3) to distribute modifications to it (requires source code);

and on the following constitutional principles:

  • sovereignty: defend the country's and citizens' interests without being submissive to foreign interests;

  • impersonality: no undue favoring of individuals or businesses in similar conditions;

  • morality: not using a public position for personal advantage;

  • publicness: mainly transparency, enabling the society to exert control over the government;

  • efficiency: making the best use of the limited available resources;

  • economy: spending only when the expected payoff is reasonable;

A few other economic principles stated in the Constitution were also used: free market competition, consumer's defense, reduction of regional and social inequalities, seek for complete employment and favorable treatment for small businesses constituted under Brazilian law with head quarters in the country.

The arguments are presented below in an extremely shortened version that assumes some familiarity with the Free Software business models. The full article [FSF] goes into far more detail in both explaining the various Free Software business models, with clarification on some common incorrect assumptions, and detailing the arguments and how they relate with the constitutional principles.

It's easy to see that the freedom to use the software, especially when combined with the freedom to redistribute it, contributes to economy and efficiency, in that it enables a single investment to benefit all of the public administration and even all of the citizens, and it often saves the entire cost of public tenders for software licensing. Without the freedom to study and adapt the software, sovereignty is at risk, since you can't tell what the program does, thus violating transparency, since you can't share with citizens what programs do, or how their information is handled or encoded.

The freedoms to study and adapt the program, to redistribute it, and to distribute modified versions, combined, also contribute to economy and sovereignty, in that they enable the government to hire third parties to maintain software that a vendor abandoned or failed to maintain satisfactorily. This in turn favors impersonality, since otherwise a choice for a software platform would favor its vendor for as long as it was still in use (which is why morality is often tempted at the time of such choices), and the free market, since it makes room for competition for services that only the original vendor could offer otherwise. This can be used to favor local small businesses, which increases employment, and to reduce inequalities, since Free Software makes monopolies harder to build.

Warranties that must be offered to consumers per Brazilian law also apply to software transactions, but proprietary software warranties generally only cover the media; Free Software vendors, inasmuch as they offer software services, must thus offer real warranties, improving customer protection.


Since we are not legally established in Brazil yet, we depend on third parties to be our proxy as Amicus Curiae. We hope the court will accept the petition, if it is filed in time, such that our paper can have a chance to dispute the misconceptions presented in the original filing and in the first Amicus Curiae petition, and make sure the term Free Software is not poisoned in Brazilian legal system.

As explained above and with more detail in the paper, it doesn't matter much if the law is kept or shot down. Even though we don't see constitutional grounds to shoot it down, we'd really like the definition of the software class it privileges to be improved such that it matches the spirit of the law, already supported by the Constitution.

Even though we realize such a lawsuit is not the proper forum to rephrase the law, in the paper, we offer an alternate definition, that explains why certain limitations to the freedoms are acceptable, such as those to ensure that similar freedoms are granted to third parties when the software is redistributed (copyleft), to ensure that credit to the authors is preserved (not removing copyright notices), and others that might serve a useful purpose without effectively limiting the exercise of the freedoms (say, requiring the inclusion of a certain sentence in advertising material).

Although we oppose the current law, in that it is innocuous and it creates some confusion as to what Free Software means (even if it uses a different term), we hope the law is maintained and fixed, such that not everybody has to become an expert in Free Software market dynamics to realize why the four freedoms are necessary to comply with all aforementioned constitutional principles.

[LAW] Fully cited in [AGU].

[INI] http://www.kcp.com.br/diversos/adin_rs/inicial.pdf

[AGU] http://www.kcp.com.br/diversos/adin_rs/AGU.pdf

[SPI] http://www.gnu.org/philosophy/words-to-avoid.html

[AC1] http://www.kcp.com.br/diversos/adin_rs/amicus-abes.pdf

[FSF] http://www.fsfla.org/?q=en/node/109

2. Fight campaign against DRM

The team of the campaign against the DRM in Latin America continues working to define strategies and to spread details on what DRM are, which rights they violate and which is the political and legal consequence of the technical mechanisms of access and copy restriction to digitized contents.

At the moment, the team is defining the details to mount the campaign web page, in order to continue with other spreading mechanisms, specially the radial spots campaign that will make FM La Tribu of Argentina, transmitter that has joined our work in defense of freedom in digital environments.

The DRM campaign team is concentrated around the mailing list, accessible in http://www.fsfla.org/cgi-bin/mailman/listinfo/anti-drm

The DRM posture document, elaborated by FSFLA, is also available in http://www.fsfla.org/?q=en/node/101

3. FSFLA in the media

During the last few weeks, FSFLA had numerous appearances in mass media.

The tech portal Canal-ar of Argentina made several notes related to the work of our organization. Beatriz Busaniche participated in a video where she explained what is free software, what impact has in digital inclusion projects and which is its strategic roll in our societies for WebTV of Canal-ar.

On the other hand, journalist Sebastián Premici published a note entitled "The threat of DRM", with an interview to Beatriz Busaniche, where she explains the nature of these devices and the citizen rights that put in risk. The note is available in http://www.canal-ar.com.ar/Noticias/Noticiamuestra.asp?Id=3479(Spanish)

Journalist Matías Aizpurúa, of the same media, wrote a complete article on the monitoring mechanisms of proprietary operating systems available in http://www.canal-ar.com.ar/Noticias/NoticiaMuestra.asp?Id=3494 (Spanish). The text mentions great part of the work of the mathematician Pedro Rezende, member of FSFLA, on WGA, available in Spanish and Portuguese in http://wiki.fsfla.org/wiki/index.php/Wga_es. The note counts in addition with an opinion written by Federico Heinz and numerous quotes to works published by Richard M. Stallman.

In August, FSFLA also participated in the bulletin of the University Information system InfoSiu, with an article written by Beatriz Busaniche on hacker ethics and free license systems for documentation and software. The full text of the article is available in the site of SIU in http://www.siu.edu.ar/InfoSIU/&edicion=16&nota=93 (Spanish)

Besides, VivaLinux published the article "the FSFLA initiates campaign against the DRM". In there, this portal dedicated a complete note to the campaign in which the anti-DRM team is working, in its mailing list as in the campaign resource wiki. The cover of VivaLinux is available in http://www.vivalinux.com.ar/eventos/fsfla-vs-drm.html (Spanish)

Meanwhile, on Wednesday 23 of August, Beatriz Busaniche participated in the program "La mar en coche", in the central schedule in the morning of FM La Tribu in Argentina. From that space we could talk with journalists and listeners about the FSFLA campaign against DRM, thus contributing to the public diffusion of the dangers and threats that imply the technologies of digital restriction of access and copy of contents.

4. Events

Beatriz Busaniche and Enrique Chaparro were present at Consol 2006, the Free Software National Congress, that took place August 15-18 in the Mexican Federal District. They presented there at least seven lectures in which they discussed both technical and political themes, particularly issues related with Patents, DRM, Software licensing and ongoing threats to freedom and privacy in digital environments. Besides, they participated in a roundtable and an informal speech about the threat of fines that Mexicans are publicly receiving for the use of P2P networks. FSFLA thanks the gentle invitation from the Consol organizers, and hopes to be part of Consol 2007!

Federico Heinz was in Montevideo, Uruguay, invited by the free software user group in that country (Uylug). Federico took part in a speech in the Informatics in the Public Administration Summit and offered a lecture about DRM in the DebianDay that took place in Montevideo.

Alexandre Oliva was in Lauro de Freitas, Bahia, Brasil, where he participated in the III Free Software Festival in Bahia with his speeches "As Ações Mais Legais da FSFLA" (The Coolest/Most Legal Acts by FSFLA: Free Software Foundation Latin America) and "O Poder Libertador do Segundo Dedo" (The Freeing Power of the Second Finger).

On September 4-8, Beatriz Busaniche will visit Oruro, Bolivia, where she'll participate in the VI Free Software National Congress with a lecture about the progress in the revision process of the GPLv3 license.

On its part, the Librarians Association in Rosario, Argentina, invited Beatriz Busaniche to participate in its VII Regional and V Provincial Librarian Meeting, to take place on that city on September 15-17. In this event, we'll discuss issues related with Free Software, access and diffusion of knowledge, along with librarians that take part in the meeting.

Federico Heinz and Fernanda Weiden will take part in IV Wizards Of OZ, that will take place this year on September 14-16 in Berlin, Germany. http://www.wizards-of-os.org/index.php?id=63&L=3 During his trip in Germany, Federico will participate in several other events, invited by Heinrich Boell Foundation.

5. Participate in FSFLA

FSFLA needs your help. If you'd like to contribute in any work group, to join the FSFLA or be part of ongoing activities, don't hesitate to participate in the team of your preference. The complete list of teams and ways of participation is published in our section ¿Cómo participar? http://www.fsfla.org/?q=es/node/78 (this could use an English translation, can you help?:-)