EU Software Patent Bribe Pledge Drive

Why are software patents a bad thing? Imagine if you were a musician, composing a symphony. If there were "music patents" in the same way there are software patents, you might get sued for using a trombone to play a solo in the middle of your symphony, because some corporation has patented the method of using trombones in solos. This is, of course, absurd.

Implementations (i.e. a particular arrangement of notes or a piece of software code) are already protected by copyright. Software patents have the same impact on software as the ability to patent using a trombone to play a solo would have on music.

The particular problem with software patents as opposed to patents on machines is that computer software is always an abstract notion, an idea, if you will. While the patent law states that ideas as such are unpatentable, the SW patent law in practice allows this.

After last week's events, where the European Council caused a major blow to the democracy in the EU, and just walked over the European Parliament and its own judicial processes by accepting the Directive for Software patents, some enterprising individuals have set up an European Anti-Software Patent Bribe Pledge Drive. It consists of a group of individuals who are tired at the lobbying of the big corporations, and attempts to collect money to simply bribe the European Council Presidency (held by Luxembourg) to rejecting the Directive Proposal.

I guess the idea is fair - after all, the big companies are pouring money into the lobbying as well - but bribing a politician is not exactly legal, nor is encouraging someone to bribe one. Blatantly stating that one is collecting money to bribe a country is a good example of "attention journalism", but I doubt that it is really going to change anything. The proper use of that money would be to hire lawyers and individuals with a slick tongue and a soft touch to go into the halls of the EU to lobby really hard. Which can be achieved by supporting organizations such as FFII and EFFi.

However, should the directive pass, not all is lost for Open Source. While big corporations will hastily go and patent everything under the Sun to protect themselves, small companies that do not have the money or the skills to patent their innovation will have to turn elsewhere for protection: A patent needs to be, above all, three things: it has to be 1) non-obvious (though the USPTO has pretty much thrown this one away), 2) innovative, 3) and new (i.e. non-published). Publishing your innovation as Open Source essentially makes it impossible for anyone else to patent the same invention - therefore protecting your corporation.

Unfortunately, this does not prevent anyone from suing your company. However, participating in an Open Source project means that other corporations are likely to be using that innovation as well, therefore increasing the number of people who have a vested interest in participating in the battle - on your side.

It has to be understood that most of the SW patents in the USA are defensive in nature, much like nuclear weapons during the Cold War. There would be little incentive to attack an Open Source Project, as OSS in general is very benign and not likely to attack anyone. In fact, the corporations who should fear the impact of SW patents on OSS are the same big corporations that are using or planning to use OSS components: they are regularly subjected to big law suits where no ammunition is spared - including SW patent breaches.

This Directive seems very much like a Microsoft-directive: after all, it is one of the few companies in the world that are not using OSS components anywhere, but building everything in-house or subcontracting. Even Nokia has some Linux-based systems on the market. Should Microsoft (or someone else, much like the ill-fated SCO) attempt to attack Linux on the IPR front, many, many corporations would be unhappy.

Regardless of the potential good effects, the EU Software Patents directive will undermine European competitiveness in the software market, by simply increasing the required spending on IPR. This is detrimental to smaller companies, but naturally it's something that suits the bigger players - which are mostly American - just fine.

(Tämä keskustelu net.nytin keskustelupalstalla antaa ymmärtää, että suomalaiset eurokansanedustajat Seppänen ja Stubb ovat sitä mieltä, että asia ei mene läpi parlamentissa.)

Update: "The European Parliament (EP) and the Danish parliament are investigating whether the EU Council broke procedural rules by adopting the draft directive on software patents in the face of opposition from ministers." Good.


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"Main_blogentry_090305_1" last changed on 09-Mar-2005 16:02:48 EET by JanneJalkanen.