Richard Stallman on EU Software Patents

schreibmaschine writes "Richard Stallman writes in The Guardian that the defeat of the EU directive has bought time, but that the pro-patent forces will regroup and try again."

Comments

Interesting article from RMS

[Anonymous Coward]

An amazingly focussed article by RMS. He stayed on the patent topic without deviating into a free-software diatribe, and seems to have a handle on the EU situation at large.

The only problem is... I don't. I RTFA, but I still lack the background on how this all works, between ministers, and parliaments, and councils, what a "directive" is, and who listens to who. Could one of our EU slashdotters enlighten?

Re:Interesting article from RMS

[Itchy Rich]

The only problem is... I don't. I RTFA, but I still lack the background on how this all works, between ministers, and parliaments, and councils, what a "directive" is, and who listens to who. Could one of our EU slashdotters enlighten?

Well, Ministers sit on the Councils, and the Councils take it in turns to decide who makes the tea. The tea leaves are then read by a team of experts (The EU Commission) who turn them into official Directives/prophecies.

Re:Interesting article from RMS

[Lifewish]

The Ministers (nominated by their countries) form a Council. This Council produces directives which are then passed to the Parliament (made up of elected MEPs) for ratification (or whatever else they choose to do with them). A directive is, if I understand correctly, roughly equivalent to a US "Bill" - it's a chunk of suggested legislation, which all countries in the EU would then be required to implement in their legislation.

In this particular case, the Council drafted a universally-loathed directive to legalise software patents. The Parliament made changes and sent it back. The Council stripped out the changes. A rapporteur (negotiator) was appointed; the Council ignored his suggestions completely. The Council refused to actually discuss it despite being legally required to (some of the members of the Council had been told off by their national parliaments and required to change it). Eventually the Parliament threw it out completely.

Re:Interesting article from RMS

[Scarblac]

Could one of our EU slashdotters enlighten?

Speaking for most of us, no we can't :-(.

Re:Interesting article from RMS

[Lonewolf666]

A "directive" is a decision by the European council of ministers and the EU parliament about how the EU member states have to shape their national law. While a directive is not a law by itself, member states have to adopt it or they will be in violation of the EU treaty.

A few words about the actors in this game:
-The council of ministers consists of representatives of the member states' governments. Usually ministers ;-). As the example of the German representative shows, they sometimes vote against the explicit wishes of their countries' parliament.
-The EU parliament is directly elected by the citizens of the member states, in a EU-wide election.

The process of creating a EU directive:
Only the council of ministers can propose a new directive. The parliament can propose changes, but if the council insists on its version of the directive, the parliament can only reject the directive completely. This also requires an absolute majority of the members of parliament, so a divided or not fully present parliament will usually be unable to stop a directive.

Obviously, this arrangement gives the council of ministers more power in directive-making than the EU parliament. I believe that this is undermining the checks and balances a proper democracy should have, but the parliaments of the EU member states seemed to have no problem ratifying the treaty that established these terms. The "Enabling Act" of 1933 comes to mind :-(

Re:Interesting article from RMS

[imr]

There is 2 rounds where it goes between the council and the parliament.
The council didnt listen to the parliament, didnt negociate and even tried to bypass them. The parliament needed more than the absolute majority to reject the proposal at the last round. Since they had been so dispised by the council, they voted NO in force.

Problem is that the european way of handling laws can bypass the democratical circuits. If your parliament is against a law, in most european country the law is dead.
Not anymore with the eu, you just have to have it agreed by your fellow council members (which are president or ministers like you and will return the favor). If the law passes so, then your parliament HAS TO accept the law. They failed with patents, but many other projects pass that way.
So the eu parliament is the last democratical power in the EU, yet it just has the power to reject laws, and with extreme difficulty as this law showed. And there are other ways to bypass it.

All in all, the situation is extremly shitty and Mr Stallman is probably right. EU is slowly turning in what it tries to be an alternative for: a mega power corrupted by corporations lobbying.

Re:Interesting article from RMS

[El Cabri]

A directive is a standard to which national law is required to comply before a certain deadline, otherwise the country can be fined and its justice decisions overturned by appeals to EU courts.

There is currently no directive standardizing patent law in Europe, and thus there is a lot of legal uncertainty as to the real enforcability of the many patents, including software patents issued by the European Patent Office from country to country.

Big corporation wanted, on the occasion of a directive cleaning up things, for this directive to explicitely validate software patents, and drafted the directive accordingly. The European parliement initially amended the draft to explicitely exclude _most_ software patents. The Council, made up of the cabinet-level person in charge from each country, largely unaccountable to their national parliements in the matter, reverted the amendments to again allow software patents and sent the draft back to the parliement (which meanwhile had been elected anew), which refused to vote it as is, but this time didn't write new amendments.

The directive has been dropped at that point so we're back to the legal uncertainty, but at least with no explicit software patents at the EU level.

Re:Interesting article from RMS

[Eldav]

Since they had been so dispised by the council, they voted NO in force.

Unfortunately, this is wrong : just look at the figures : 684 votes against, only 14 votes for the directive. Anti-patent MEPs alone wouldn't have been enough to reach the 2/3 quota required for rejection. TFA clearly explains what happened :

Lobbying and protests continued in Strasbourg until the last day, but on July 5 things took a strange turn. The pro-patent forces decided to kill their own directive and began forming a coalition to push for its outright rejection. On July 6, nearly the whole parliament voted for such an outcome.

In other words, the pro-patent lobby preferred to scuttle their own directive, rather than risk to get an amended directive which would not have suited them (around 150 amendments had be prepared by anty-patent MEPs).

The same kind of behaviour could be seen regarding the (temporary) rejection of the infamous Bolkestein directive : the directive was scuttled in order to try and salvage the equally infamous European "Constitution". To no avail, fortunately !

Re:Interesting article from RMS

[daniil]

Well, i thought that his lack of understanding would be obvious to anyone who has read the article, but seeing that it wasn't, i might just as well take the time to give some examples.

First of all, talking about the European Commission, Stallman says: The Hungarian representative voted for software patents even as his prime minister said Hungary was against them. The point he's missing is that the Hungarian representative in the commission does not have to (and is not supposed to) follow his government's orders, as he's acting in the interest of the whole union, not just those of his country.

Then he proposes that [t]he unelected European commission and the national governments that cannot stand up to business pressure should have no role in forming EU directives. Instead, every directive should start in the European parliament. If approved there, it should go for ratification by an "upper house" representing the people of Europe by means of referendums. There are many reasons why this is unreasonable (the main reason, of course, being that it would simply not work on such a large scale), but what makes the proposition especially absurd is that he wants to change a system that has been proven to work by the very same patents decision Stallman is ranting about. Stallman's proposition would, however, eliminate one step from the legislative process, seriously distorting the balance of powers, as there would be noone keeping the "upper house" in check (who keeps an eye on the people?); it would still, however, be quite easily manipulable (the EU referendums all around Europe are a good example of this).

Re:The world did just fine before their invention

[ProfaneBaby]

True capitalism always tends towards monopoly for some finite period of time.

The problem we have is that we (1) understand the downsides of monopoly, (2) have a pro-capitalist nature, and (3) have those who would love to control monopolies lobbying stronly on their own behalf.

The true answer is somewhere in the middle: software patents have their purpose (to protect the true innovator from a mass produced knock-off created by a huge company), but they're abused by the huge companies of the world. The problem, though, isn't with software patents in general - it's with the implementation of the patent system as a whole. True innovation is lost in the midst of mass-filed patents on every possible silly concepts as the patent-land-grab has become the new speculative market. By reforming the way that patents are issued, we can both protect the true purpose of the patent, and prevent the widespread abuse that makes them dangerous to most people.

Away from tech

[gowen]

Our years-long fight has shown how undemocratic the EU is. It is a system in which bureaucrats can make decisions that, practically speaking, the public can never reverse.

Software patents aside, this is a really crucial point. Every anti-EU politician in Europe should be hammering on this point (using Software Patents as an example), and on the fact that corruption is so widespread that the EU's own auditors have refused to sign off on the accounts for year after year.

The Golden Rule still applies

[MarkEst1973]

Those who have the gold make the rules.

Stallman -- as he usually does -- wrote a well-opinioned piece, but it's money that influences politicians. Stallman doesn't have any, and the FSF not nearly enough to stop M$ or others.

The patent system will change when enough big companies get tired of it, like IBM's recent call for patent reform. IBM has the money to push these kinds of issues. Stallman does not.

FFII web site taken down

[alanxyzzy]

IN related news, this ZDNet article reports that the German software company Nutzwerk has obtained a court order taking the FFII's web site offline.

In the meantime, please use nosoftwarepatents.com instead, where you will find more information on the issue.

Re:FFII web site taken down

[Christian Engstrom]

On the news@ffii.org mailing list, Hartmut Pilch, president of the FFII, wrote:

The domain ffii.org is currently offline, due to a hoster who did not have the nerve to research a baseless threat letter sent by Nutzwerk's lawyers.

The FFII.org machine is not offline.

For instance you can still view

http://www.economic-majority.com/

And if you give 212.72.72.97 as a nameserver, you can see all ffii.org domains.

interesting

[roman_mir]

Europeans are fortunate that French and Dutch voters conclusively rejected the proposed EU constitution. The document explicitly prioritised the interests of business over the public. It slightly increased the power of the parliament while greatly increasing the power of the council of ministers: in other words, it would have made the union less democratic. The rejection provides an opportunity to consider something better. I have a proposal. - RMS is bringing up an interesting point here. Had the EU constitution passed, the resulting government body would have been able to impose regulations on formerly sovereign contries and the process would have been far less democratic than it is now. The United Europe government would probably be even worse than the US government in such issues. Viva la France?

Keep it up RMS!

[LibrePensador]

Stallman exemplifies that old adage that the price of freedom is eternal vigilance or something to that effect.

For all the BS he often gets from the newly-lobotomized Microsoft "ain't that bad" and "Apple's so cool that we must lick its DRM" crowd, he has much respect for consistently fighting the good fight, which is something that is rare to find in these funny times when people gloat about not believing or standing up for anything.

Re:The world did just fine before their invention

[ZephyrXero]

Agreed, patents aren't really a bad idea in theory... it's in practice that they've become a problem.

Quick and easy ways to solve current patent issues:
1. Make patents only last for around 10 years. This gives the inventor more than enough time to establish themselves as the original.
2. Make corporations have to pay much more than an actual person would be charged to file.
3. Any person or business that files over 5 patents in one year has their filing fees raised expotentially with each subsequent submission.
4. Don't allow patents on concepts and ideas, only something that's actually been produced already.

These won't fix everything, but it's a good start and woulnd't be hard at all to implement. Getting the guys in charge to listen however, is a very different story...

Re:I think that software patents are a good idea

[cpt kangarooski]

Well, the problem I have with them is this: Patents exist only to provide an additional encouragement to inventors to do certain things that they would not have done otherwise (i.e. invent, disclose, and market their novel and nonobvious useful inventions).

In many fields, the encouragement of merely being a competitor with others is insufficient, though it is worth noting that inventions don't stop being useful when their patents expire, and that the lack of a monopoly on an invention doesn't mean that you can't still make a handsome profit. Thus, the additional encouragement of a patent is of use to the public, which is who wants to see more useful, novel, and nonobvious inventions come about, who wants to see them disclosed so that anyone can reproduce them later, and who wants to see articles embodying the invention in the marketplace.

The software field is special, however. At least for right now, I think that there is so much inventive activity going on that patents simply could not stimulate more of it. Likewise, software embodying these inventions often hit the market. Disclosure is at times an issue -- though for some inventions, the specific details of their implementation are not of huge importance. However, I think that it's best addressed with additional copyright formalities, rather than granting patents.

In fact, not only do I believe that patents will offer no additional encouragement to software inventors, I think that the monopolies they embody, and the high costs of complying with them or licensing them, will in fact reduce the amount of inventive activity going on in this field.

The only reason software patents exist is that there is a belief amongst many in the patent field that patents should be granted for any sort of thing under the sun, made by man, if it satisfies the various requirements for a patent. This is ideological, basically. I OTOH think we should remember why we have patents at all, and thus should grant them, or not grant them, for particular fields according to pragmatic values. In some sectors of industry, patents are beneficial; in a few, such as software, they're not.

I don't think that merely varying the term length is a good solution. Better to just ban them for the software field (and business method field) for now, and only reinstitute them if those fields slow down and finally actually require the additional encouragement.

EU constitution would have been an improvement

[antientropic]

Nonsense. European law is already binding on "formerly sovereign" member states (and has been since 1963). The EU constitution actually would have shifted more power towards the European Parliament, which would have made a fiasco like the patent thing less likely.

I think that the defeat of the constitution was a huge mistake. It kind of dooms Europe to less relevance on the world stage and years of stagnation.

Re:EU constitution would have been an improvement

[o'reor]

Indeed, the EU law is already binding on member states, but I have to disagree with you and share the views of RMS on that point : the new constitutional project would have made the EU less democratic and (even) more corporate-driven than it currently is.

With this text, although the EU parliament would have had the power to oppose decisions taken by the EU Council of ministers, the decisions would have been as messy to take or to oppose as with the current EU software, since this directive project was already being discussed in co-decision -- the way nearly every directive would have been, had the text been approved. As we have all seen with the software patents directive, there was still plenty of room for sneaky things to be done by the Council and the Commission to push the agenda of the European Patents Office against the will of the Parliament, and as RMS says, even though the Parliament rubbed their noses this time, they will surely be back with a revenge.

However, if the constitutional treaty had been voted in, the Commission and the Council would have had even more powers; the Commission could have taken "european decisions" (the equivalent of directives, that have force of law) on its own, without any possible democratic check and balance over these : not even the EU Council would have a say on that.

Finally, let us not forget that the inherent flaw of the current EU institutions is that the Council of Ministers has the legislative power at the european scale, and the same ministers apply these european laws using their executive power at the national scale. This is already in contradiction with the principles of separation of powers.

So sure, it will be a while until the EU gathers again around a constitution project. But I think that voting against this one was the right thing to do -- and I for one did it.

Re:we need EU level software patent exclusion

[El Cabri]

The Commission is one thing, the Council another. The obvious problem with the commission is that it is non-elected and non-accountable, however to a certain extent. We must remember that a commission was cornered into resignation by a parliementary enquiry a while ago, and this Italian homophobic dude who was kept out also based on parliementary pressure. The Commission is supposedly strictly technocratic and apolitical, and in reality very strongly ideologically molded into a free-market worshipping sorcerer apprentice that thinks Europe should be turned into the ultimate Adam Smith lab test.

However the commission only drafts directives, and doesn't vote on them. Its defeat on the patent directive shows that there are limits to its powers after all, and its bad name puts it right in the cross-hairs of each and every EU bashing force in Europe.

Another problem is the Council. As a meeting of national government representative, they bear the seal of democracy. The problem with them is that their debades occur behind closed doors, and in effect there is few oversight from the individual nations political forces. One solution is to institutionalize the oversight of Council discussions by national parliements, which the draft constitution did in a way that was too weak to be valuable.

patents are anti-business

[blitz487]

Stallman seems to think that patents favor business interests as opposed to the public interest. What he doesn't realize is that patents are anti-business as well. All you have to do is look at how businesses can be threatened, cowed, and destroyed by patent litigation. The public isn't going to be sued out of existence by patent lawyers.

The interests served by patents are not the public or business in general, but a handful of giant corporations who wish to use armadas of patents to cover for their inefficiency and sloth and prevent other, more nimble businesses from competing with them.

Re:patents are anti-business

[SirSlud]

Well said. Patents (and copyrights) were originally inteded to provide protection to small businesses or artists. Now those very same laws have simply been extended and convoluted enough to favour large corperations (friends of the king, in feudal-speak) with mountains of lawyers.

It breaks my heart when I hear somebody quote strong copyright or patent laws as a means of protecting Joe Average and his American Dream. The current state of these laws makes such a claim nearly indistinguishable from a romantic fantasy.