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In Switzerland, the legal basis for the government to support Free Software is still lacking


For the time being, the public development of the Free Software 'OpenJustitia' by the Swiss Federal Supreme Court has ceased because of a new legal opinion. The reason for this abrupt end is apparently the legal uncertainty regarding public contractors in Switzerland. The FSFE demands that the missing legal framework be created as soon as possible so that software developed with public funding in Switzerland in the future can also be released as Free Software.

At the end of October, the Swiss Federal Information Technology Regulatory Body (ISB) published a "Legal Opinion on the Constitutional Permissibility of the Fringe Usage of Software in Administrative Capacities, in Particular of the Release and Distribution of Open Source Software through Federal Contractors (German)". In it, reference is made to the absence of a legal foundation that allows "the release of state software to third parties" as Free Software. Furthermore, in the same opinion, a possible market distortion is alleged if the state should develop stand-alone Free Software. As a consequence of this, the Swiss Federal Supreme Court disclosed (German) that for the time being it will not be making "publicly accessible" any further development of the prize-winning Free Software 'OpenJustitia.' This is the tentative culmination of a year-long legal battle between the court and its former software provider Weblaw AG.

As the local FSFE group in Zürich clearly explained in its statement, however, there is no market distortion as claimed in the opinion because "OpenJustitia was developed because there was no existing solution." Even the official statement of the court (German) says that it was for want of a satisfactory existing solution that it decided to develop independent software and consequently to provide it to local courts and the wider public as Free Software under GPLv3.

"The example of OpenJustitia highlights the need for improvement of the Swiss legal situation regarding governmental support of Free Software," said Erik Albers of the FSFE. "Especially when - as in the case of OpenJustitia - there isn't any market, governmental development or support of Free Software is best suited not only to ensure a supply but also facilitate a market. This is not even considering that what the public finances should also be available to the public.

The FSFE requests that a legal basis be made as soon as possible according to which the Swiss federal government can, moving forward, develop Free Software and make it available to the broader public. Along with this, the FSFE would also like to support the "Parlimentary Group for Digital Sustainability" (German), which has announced presenting a motion that will explicitly allow the release of Free Software on behalf of the Swiss federal authorities from now on.