The European Commission's open source software pool

The focus of this report is relatively narrow. The Commission is not trying to promote open source in general, and it is not trying to get governments to use free software desktops. Instead:

In other words, the Commission thinks that open software can maybe help keep the trains running on time. Performing these governmental tasks requires large amounts of custom software. In general, there is not a market for this kind of administrative software, since there are so few buyers. So governments end up writing their own. And that, of course, leads to the obvious question:

The open source case is helped by the fact that governments will, in general, need to be able to adapt any shared software to their particular needs.

So the report's authors envision setting up a "Pool of Open Source Software" (POSS) portal where governments could share their software. The end result looks very much like a multilingual, restricted access version of SourceForge.

They have already picked out the components they expect to use in the creation of this portal: Linux, Apache, ProFTPd, MySQL, phpMyAdmin, exim or sendmail, mailman, python, fetchmail, webalizer, PHP, cvs, sourceforge, OpenSSH, etc. They picked open source tools "to reinforce the credibility" of the project, "although we do not consider this requirement as a technical one." Running this project is expected to cost about EUR 6 million over five years.

Much space is dedicated to worrying about licenses, patents, and liability. Governments, it is said, satisfy two criteria that make them especially prone to litigation: they are easy to find, and they have deep pockets. So a licensing or liability issue that attracts little attention when a small company or development group is involved could turn into a big court case for a governmental agency. To avoid such troubles, the report authors want to nail down a number of legal items with more than the usual amount of precision.

For example, very few free software licenses specify where any disputes should be resolved. The report states that the license for any software distributed through POSS should be augmented (with a separate agreement, perhaps) by a statement of jurisdiction. If a licensing issue goes to court, they want to know which court. Similarly, they want a declaration of which country's laws apply in a dispute.

Patents are a concern as well; the report seems to accept that software patents are in Europe's future. There is a discussion of an IBM submarine patent in the ebXML specification as an example of the sort of trouble that can come up. The report concludes:

The report has no suggestions, though, on how to find all of the potential patent problems in a given piece of software.

Then, there is the issue of liability for software-related problems. The report writers worry that the standard liability exclusions found in both free and proprietary licenses may not be legally valid. They hope to address this problem by instituting a review process within the POSS system - though it's hard to imagine how this group could, with confidence, issue a clean bill of health for any package.

There is one other component to the report's solution to licensing, patent, and liability issues: restricting access to the software to "public administrations," initially in Europe only. With a restricted user base, contracts can be signed that give the POSS system - and those contributing software to it - a better handle on the various legal issues. A "public administration" which obtained software from the system could, of course, redistribute it under the terms of its (open source) license; they would, then, take on the related legal issues. In practice, it would not be surprising if very few government agencies redistributed software obtained from POSS.

In other words, the software involved may be open source, but there are limits to the openness of POSS. European Union citizens wanting to look at the code used by their government may have a hard time getting access - even though said code is, in theory, under an open source license. POSS looks more like a private code sharing club than a true open source project. Sharing code may be helpful for governmental efficiency, but the "members only" approach could deprive both governments and citizens of many of the advantages of truly free software.