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Munich's Linux Migration Raises EU Patent Issues
J ROC writes "Techweb has a story about the German city of Munich's Windows-to-Linux migration. It appears the move to replace 14,000 Windows desktops with Linux has hit a bump. Green Party alderman Jens Muehlhaus, who is a supporter of open-source software, has petitioned the mayor to examine the status of software patents in the European Community. The issue involves a proposed directive on software patents that is being considered by various European governments. Muehlhaus fears that a patent owner could issue a cease-and-desist order against Munich, thus hurting the operation of various city departments."
I wish I had thought of it! The only way to make the government see that software patents are bad is to show them that they've got something to lose!! GENIUS!
EU software patent directive makes Munich's Unix migration difficult.
The moment Germany caved on Software Patents they ensured that free software would require licenses simply to continue to exist and be compatible with any commercial software.
Hence, any government (e.g. Munich) hoping to use open source or free software will eventually be unable to do so and still retain compatibility with common commercial software. It's a foregone conclusion.
Case in point: Samba. It's only a matter of months before Microsoft uses patents to kill Samba and all similar communications compatibility with Open Source software. How will this affect Munich?
I really do hope this brings the German delegation to the EU back to their senses, but I fear it's too late. By the way, the ffii site seems to be down. Anyone know why?
Munich didn't get its Linux by downloading ISO's, it got that Linux from IBM and SuSE (now part of Novell). I suspect those companies can handle such problems.
I don't see how this is specific to OSS. After all, the same could be true about any software, Free, free, commercial, open, closed, in-house, public domain, etc... There are so many patents, many of them vague, out there, and no company or government(not even those departments dealing with patents) knows them all. Combine this with the fact that every line of source code could violate multiple patents given the simplicity of patents, and the combination of certain lines of code could also violate patents while each line by itself doesn't. So to check a program of size n against a patent database of size m is takes at least O(2^n m) of human resources. No one can supply this much time for any realistic software. Hence, we can never be sure that software we use doesn't violate any patents.
Clearly, whatever platform they are currently using faces the same problem, so unless they have identified a specific problem, this should not affect the migration.
X-Has-Sig: yes
The FFII (www.ffii.org, just that the website is inaccessible while I am writing this) identified more than 50 conflicts of the Linux "base client" of the city of Munich (from their migration feasibility study) with software patents that had been granted or are about to be granted by the European Patent Office.
For some background information: The European Patent Convention of 1974 does not allow software patents. It excludes program logic from patentability. The European Patent Office has been granting software patents anyway (in fact, about 30,000 already), and now the European Union wants to take a decision on the patentability of program logic. That decision could go in any of three directions:
legalize software patents all the way (that's what some of the EU institutions want, and it's the will of the governments of Germany, UK, France, Sweden and other countries)
abolish software patents entirely (that's what the European Parliament voted for in September of 2003, and that would be best)
continue with status quo (which means that the situation remains unclarified for now... that would not be ideal but still infinitely better than legalizing software patents in the EU)
What the Greens want is for governments such as the German one to consider the implications of software patents to their own IT strategies. It's not just that the city of Munich migrates to Linux. There is a "Migration Guide" book that was published by the German Federal Ministry of the Interior, and in that migration guide they tell, in no uncertain terms, every public administration in Germany that they should migrate to open source as fast and as much as they can. That type of recommendation is reduced to absurdity by simultaneously supporting software patents, which in the opinion of Linus Torvalds, Alan Cox and many other developers are the ultimate threat to Linux.
The European governments have a simple decision at hand: Do we want a competitive environment in which open source and small and medium-sized enterprises can present every purchaser of software (governmental agencies, enterprises, private households) with alternatives? Or do we want an oligopolistic market in which only a few powerhouses cross-license thousands or tens of thousands of patents at a time, and can at their choosing leverage those patents against their competition?
It's another question whether open source is more endangered by software patents than closed source. For the most part, everything that is bad about software patents simply applies to open source as well, just that FOSS is particularly successful at breaking into monopolistic and oligopolistic markets (as the Linux migration project of Munich shows). What comes on top of all of this is that access to source code makes it easier to identify and substantiate patent infringement assertions. In my opinion, that open-source-specific aspect is not nearly as important as the fact that FOSS is a strong competitor to various patent powerhouses.
Generally, software patents simply make software development hugely more expensive. Without software patents, you need to know how to program, you purchase a computer for maybe $1,000, and you can contribute to an open source project. With software patents, you need to play that absurd cross-licensing game, and you can't do that without thousands or tens of thousands of patents, which in turn means that unless you're a multi-billion $ organization, patents are only a risk to you and no protection at all.
I promise this is my last next-to-top-level posting on this thread :-)
:-)
Here's the EU situation. They want to clarify and sort of supersede the European Patent Convention of 1974.
The initiative at the level of the European Union started in 1999 when the European Commission started to look into this.
On 02/20/02, the European Commission formally proposed a "Directive on the Patentability of Computer-Implemented Inventions", totally pro-swpat.
On 09/24/03, the European Parliament said No but in a very smart way. Instead of just turning it down, they simply amended it to the effect that it was turned around by 180 degrees. They turned a pro-swpat directive into an anti-swpat directive.
It then went to the EU Council, which is the representation of the EU member states. That's where the responsibility of the government of a country like Germany comes in. On May 18 of this year, the EU Council reached a "political agreement" on a pro-swpat directive. Basically they dropped the essential amendments of the EU Parliament, went back to the text of the Commission, and even went beyond by particularly allowing "program claims". So the EU Council came up with the most terrible legislation of swpats that anyone in the EU has proposed to date.
Now, the press reported on that May 18 thing as though it were a final decision. It's not final at all. It was not a formal vote on May 18, just a tentative vote. The formal decision is now expected to occur on September 24, and in the meantime, the Dutch parliament has made a resolution that the government of the Netherlands should abstain. On May 18, they were in support of swpats, so technically there is no more majority right now but the EU Council procedure is such that the May 18 thing might be passed without a vote (just by no one protesting... they call that an "A item", adopted without debate). Every country that supported swpats on May 18 could still change its mind, including Germany. It's just that they usually don't do that because it would violate an unwritten code of diplomacy. The whole idea behind this "A item" thing is that they want the civil servants of the national governments to work out as many things as possible so that the ministers, who the Council is formally composed of, don't have to deal with each and every issue. The EU passes thousands of laws and regulations every year and the fewest are sorted out by the ministers.
Even if the EU Council were to pass its May 18 pro-swpat directive, that legislation would still not take effect. It would go back to the EU Parliament, and then there is so much that can happen in procedural terms that I'd better stop it for now and let's talk about this if and when we get there
The EU legislative process involves three different bodies (EU Parliament, EU Commission, EU Council) but the two latter ones are pretty much the same on the swpat issue.
It is interesting to observe that democratically elected representatives of the people have so far taken anti-swpat positions: The European Parliament on 09/24/03 and the Dutch "Tweedekammer" on 07/01/04. However, the EU Commission and the so-called "Working Party" (a committee of civil servants basically) of the EU Council are pro-swpat.
There are three reasons why this is so:
Those civil servants on the patent workgroup of the Council are typically the national patent administrators. They are senior civil servants and some of them are on the controlling board of the European Patent Office. They don't need a pro-patent lobby to lobby them. They ARE a pro-patent lobby themselves. Those people believe that patents are the greatest blessing that has ever been given to mankind, and their own influence and career is linked to the patent system in one way or another.
Large corporations such as Siemens, Ericsson, Nokia, ABB, Bosch and others aggressively push the national governments of the EU member states for swpats. They might pay dearly for that in the end because they aren't really good at making patentable "inventions" in the software space but they believe it just benefits the large companies and they can then cross-license with the other big guys. Those European corporations basically do the lobbying job for the American large corporations that want those swpats even more but can't take as visible a position in the European debate as they'd like to (they do it indirectly through industry associations that they have hijacked, such as BITKOM in Germany). The political influence of those European corporations is huge. If the CEO of Siemens wants to talk to the chancellor (head of government) of Germany, he probably just calls him directly on his cellphone.
There are many companies, particularly software companies (not only in open source!), of small and medium size, which should be concerned over this political development and should collectively run a forceful campaign. Swpats will never be the mainstream political topic that, for instance, the war on Iraq is, but if properly presented, it can be a significant topic. After all, every public administration, virtually every enterprise and a vast majority of all households needs software. However, the management of most SMEs is too unsophisticated in political terms. I'm now making an effort to get some of them to figure this game out. Unless they are ready to join the fray and do something impactful (which is not just minor things like writing open and non-open letters to politicians), they'll lose out all the way. SMEs typically think that they should only focus on their core business and shouldn't ever spend management time, let alone money, on the political front. Large corporations are typically much smarter in that regard (they not only have more resources, they also do understand that politics are a business priority). The shortsightedness of most small and medium-sized companies in this respect is stunning.
It's nothing short of remarkable how successful the FFII and other anti-swpat activists in Europe have been under those circumstances, without a substantial amount of funding!