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Software Patents Circumvent European Parliament
Tom writes "Despite the european parliament's vote to exclude software patents, the patent lobby is pressing forward and patentability of software is on the agenda of a workgroup whose advise the european council will likely follow.
The european council is at odds with the parliament concerning their stance on software patents. The patent lobby is facing a narrow loss in the parliament, which has voted against software patents, but now circumvents democracy by convincing the council. If they succeed, software patents could be coming to Europe before christmas." <update> The links above seem to have stopped working for me - however, ffii is carrying the news as well.
The anti-patent lobby in the EU has achieved great things, but the pro-patent lobby is extremely determined even in the face of a clear democratic mandate against software patents in the European and many national Parliaments. They know the system, they seem to have the support of many unelected Eurocrats, and they can and will exploit every possible loophole to legalise the over 30,000 illegally granted patents in the EU. This is yet another example of this.
The important thing is to keep up the pressure. When this topic has come up on /. in the past, there are always a few nohopers, who think any opposition to software patents is futile and we may as-well give up. These defeatists are the greatest allies of the pro-patent lobby, and they are wrong, as what progress we have made has demonstrated.
In short, keep fighting, don't give up, we have won a number of battles, but the war is far from over.
This has little to do with EU-specific stuff. The Council of Ministers consists of ministers from the various national governments, and it's them who are pushing this through. It's Sweden covered by Ericsson and Scania, Finland by Nokia, the Netherlands by Philips, Ireland by all US companies it provides a low tax haven for etc.
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And this is precisely why the EU is the least democratically accountable institution in Europe today. In every sitting national government on the European continent today, legislation is created and passed by a (presumably) democratically elected parliament, or that house of a bicamel parliament that is directly elected. In many cases, European governments are formed either directly out of the elected body of parliament itself (as in the British model) or out of some more complex relationship that certainly includes the directly elected house of parliament and a democratically elected executive (such as the French system).
By contrast, the European Concil is a body appointed by national governments, that has the authority to directly legislate. While the EU Parliament can approve or "rubber stamp" an act of the EU Council much like the "soviet" era parliament, if it chooses to reject a council law, the Council is given the power to override Parlaiment unless a super majority (66%) chooses to oppose it.
Indeed, the EU transational governance is not very different in functional arrangements and democratic principles to that that of the old Soviet Union. And they wish to further ratify this defective system through a constitution that retains this principle undemocratic form of governance as well as expanding the power of the EU into a true European Government.
As noted, the original council draft on European patents was rejected by the European parliament. In a democratically functional society and government this would in effect have been a veto. It is to the shame of Europe and to the very principles of democratic governmance that this alone was not enough to kill the council directive, and that the will of the elected parlaiment, and most importantly of all, the ONLY democratically "legitimate" and accountable institution in the entire EU, can so easily be rejected.
Personally I do not believe Europe is ready for transational Governance. There is no true transational political expression today, perhaps with the exception of the "Greens". By contrast, when American federalization occured, there was already well established and popular trans-state political movements and proto-parties, such as Federalists, etc. By contrast, when we look at the EU parliament, it is composed of people elected from strickly individual national political parties. There are no "European Socialists", for example, though there are members of the French socialists, Finland national party, German Social Democrats, etc. This lack of true transational European political expression I believe is why Federalising Europe is impractical at this time, and certainly helps to explain why some believe they could bully through an undemocratic and defective institution onto European nations like the EU system of today.
I just hope the EU doesn't pass the patents law, it's the only hope for fixing it in the USA. If the EU enacts legislation that gives them a clear competitive advantage and costs the US Government revenue (spelled TAX DOLLARS) then the US might abolish it's patent crap as well. If the EU folds, then darkness will simply cover the Earth or all IT innovation will go to the 3rd world or China.
Murphy was an optimist.
I also remind you that the Dutch government explicitly *ignored* a decision of the Dutch parliament on how to vote (which was binding iirc. It was on /. a few months ago but I don't remember exactly and I'm lazy so perhaps someone else could look it up). Me thinks we should be less concerned about what is wrong with the EU and more about what is wrong with our national governments. (doesn't mean that there aren't enough things that are wrong with the EU. Unfortunatly the constitution which would solve some of them -e.g. a more powerful parliament- has no chance of surviving the British referendum)
Don't think of it as a flame---it's more like an argument that does 3d6 fire damage
In case of the software patents directive, those faceless bureaucrats are the same people that conduct the day to day operations of the European Patent Office. The same EPO that introduced software patents. They are mostly delegates from the various national patent offices.
And of course, the ministers don't decide how to vote on texts by themselves, they have advisors. You can have two guesses who those advisers generally were in this case.
Because the Council operates so intransparently, it's very difficult for the national Parliaments to keep their governments in check. Further, the Council itself does not operate democratically at all. Just look at how Poland is being bullied by the Dutch Presidency to accept a directive it does not like at all.
Because the MEPs are directly elected by local people and their reports are fully public and their way of working is quite transparent. They obviously aren't all saints, but in general they are quite reachable by "common people" (unlike governmental ministers, let alone governmental bureaucrats). I also remind you that the Dutch government explicitly *ignored* a decision of the Dutch parliament on how to vote (which was binding iirc. It wasn't binding, but the government said they would abide by the result. However, they made a peculiar interpretation of it which does not oblige them to change their vote after all. There are definitely also problems there. Many people doubt whether it will improve more than it will hurt. For example, one of the articles in that European Constitution simply states "Intellectual property shall be protected", without further specifying in any way what this intellectual property is. So forbidding software patents may actually become unconstitutional under that text. Maybe allowing free thoughts will become unconstitutional as well, since you may be using thought processes that someone else used before and he has a constitutional right to "protection" of those.Donate free food here
The sole reason we grant patents is to serve the public interest.
... Why is it better for someone OTHER then the creators of the program to decide what should happen to it?
The public wants many useful, novel, nonobvious inventions to be made. Furthermore, they want the inventions to come to market in the form of products, so that they can truly be taken advantage of. But they also don't want to pay anything if at all possible, nor suffer any restrictions with regards to the inventions or products, or if that's unavoidable, then they want to pay and be restricted as little as possible. And the inventive work of others should not be interfered with at all, or if at all, as little as possible.
These are the multiple, equal, competing interests of the public, and the idea is to find a balance between them where these public interests are best served. Since very often increasing or decreasing the degree to which one is satisfied will have a disproportionate effect on another, it's fairly tricky. Furthermore, whenever one implements a patent system, it should be as simple and unrestrictive as possible in order to accomplish any overall gain in public good. And the public good must always be satisfied more than it would be if there were no patent system at all, since otherwise the best solution would be to abolish the whole deal.
In the realm of software, there is already a tremendous satisfaction of the public interest without any real involvement of software patents. Therefore, unless they will make things better still -- by causing there to be more invention, and more productization, and lower costs and restrictions -- they're a bad idea. And software has been going along amazingly well without patents, and seems to be doing worse when patents are employed. So it looks like software at least is an unusual environment where patents are harming the satisfaction of the public good rather than promoting it.
What is wrong with someone saying "this is my product, and if you want to use it you gotta play by my rules".
Because they have no leg to stand on. If a caveman came up to you and demanded $100 every time you used fire in some way (to smoke, to cook, to drive a car, etc.) you'd ignore him. And he couldn't do anything to stop you from using fire, even though he invented it.
The inherent nature of inventions is to spread and to be used by anyone who wants to use them and understands how. There is no natural right for the inventor of fire to be able to prevent other people from using fire. People can use fire against his will. And do.
Because this might frustrate inventors, and because we want them to invent stuff, and not just mope around, (actually we want all the stuff on that list above) we set up an ARTIFICIAL system whereby we might WILLINGLY not use their inventions if they don't let us, in order to prop them up.
Basically patents are a form of subsidy. It's like dirt farmers. In order to maintain what are seen as good prices on crops, and to avoid overproduction, the government pays farmers to not grow anything. If we let competition take its natural course, they would grow stuff, there'd be a glut on the market, and many farmers would go out of business. Clearly, they have no natural right to be paid for not doing anything. Hell, I wish that I could get a handsome salary for just sitting around. But we pay farmers because it serves our own best interests (since we feel we want small farmers and fairly stable prices). If we stopped feeling that farm subsidies were a good idea, they'd stop getting paid.
Same deal with patents: inventors have no natural right to control their inventions (other than to not make them or reveal them in the first place) but MAY have artificial rights granted if it serves the best interests of those who are granting the rights. And the grants don't have to be made.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.