Actually, the plan was not to sneak in a vote on the issue, but to have an approval without anybody really voting.
That is somewhat problematic from a logical point of view. How is the Council supposed to "approve" something without voting? This is somewhat surprising for people not familiar with the Council's Rules of Procedure. Basic values of democracy should require that votes are actually counted.
I have posted a couple of articles analyzing this mystery on my blog linked in the signature below.
The legal reasoning at the very end of the document is just slighty longer as your average haiku . All it says is (translation mine):
"This is imposing unfair restricting conditions on the enterprise activity of PC makers and sellers in doing business with them and is therefore a case of number 13 of unfair business practices (FTC notice number 15/1982) and as such violating Article 19 of the Antimonopoly Act."
Readers of this reasoning are left without a clue when this kind of clause might be legal. There are many possible situations where this kind of defense against software patent claims might be quite reasonable.
One obvious one is a wide cross-license agreement between two companies. Did the FTC just outlaw those and make it impossible to cut through the software patent thicket?
It will be interesting to see if the FTC issues a less cryptic decision after the hearing with Microsoft.
That's not only because the American president is not particularly popular in Western Europe, so whenever Americans open their mouth, Europeans are likely to do the exact opposite right now.
It's also because even those who fight for software patents have to pretend they don't want the extremism that passes for patent policy in America these days. Even they must appear to oppose business method patents, for example.
That means that any open assistance American assistance for the project to sell out the European software industry to American patent holders will backfire. It will help the opponents of said project.
That in turn means that all opponents of legalizing software patents in Europe should welcome all the clueless interventions on part of the American government.
of the American Constitution requires that no person "shall be compelled in any criminal case to be a witness against himself."
In a 1996 paper Greg S. Sergienko explains that in America, the Fifth Amendment would give a suspect the right to refuse handing over encryption keys.
I agree with that analysis.
Therefore, I think that any legislation based on Article 19 of the Cybercrime Treaty would only enable law enforcement authorities to request encryption keys from third parties who run no risk to be prosecuted themselves. Article 19 should not be constructed as requiring self-incrimination.
The guest essay says that one must assume that someone attacking the integrity of an election has at least a $100 million budget.
While it is true that a lot of money is raised in elections, not all of that could be invested in a project to steal an election without anyone noticing.
Therefore, the above estimate seems to be much too high.
Anyone assuming that the EU commission can be ignored safely because they don't have strong enough sanctions available might be in for a nasty surprise.
$600 million might be not ever so much compared to Microsoft's profits.
However, if they stubbornly insist on violating European competition law, for example by not following the specific orders about unbundling and making available information, the EU could rather quickly fine them again. Maybe a billion this time.
And if that doesn't help, another two billion a few weeks later. A billion here, a billion there, and before you know it, you are talking about real money.
From May 1st on, the Commission also has the power to impose periodic penalty payments under Article 24 of Regulation 1/2003 on top of any additional fines.
The system would obviously be broken if anyone making a profit of more than 10 percent of turnover by violating competition law could get away with cashing the difference between that profit and the fine.
We will see what happens. I don't agree with the idea that EU competition law can be safely ignored.
It would have been nice to stop this proposal, since there is no reason awarding special favors to plaintiffs in intellectual property cases as opposed to everyone else.
On the other hand, there is a bright side even to this unfortunate development. The Directive says nothing about penal sanctions. Contrary to the original Commission proposal, there is nothing left of Article 21 on the circumvention of technical measures. The article on damages has also been reduced, there are no damages at the amount of double license fees.
Since this is a Directive, the fight is far from over. It will now move on to the 25 stages of national legislation.
German Unfair Competition Caselaw
on
Germany Muzzles SCO
·
· Score: 2, Interesting
What this settlement does not say: SCO agrees not to allege A, B, C, D...
What it does say: SCO agrees not to allege A, B.... unless they have evidence for it. And they agree not to announce having evidence unless they hand over such evidence to Univention within one month after the announcement.
The legal basis for Univention's claims against SCO Germany is Article 1 of the Act against Unfair Competition (UWG). In patent attorney Ralph Beyer's translation:
"Any person who, in the course of business activity and for purposes of competition, commits acts contrary to honest practices may be enjoined from these acts and held liable for damages."
Relevant caselaw is a decision of the Hamburg Higher Regional Court (OLG) of August 31, 2000 (3 U 272/92, WRP 2001, 956-964) and a decision of the Federal Court of Justice of July 7, 1954 (Johann Maria Farina, BGHZ 14, 282). Under that caselaw it is an "act contrary to honest practices" to assert intellectual property rights in public without actually having them.
Now, what exactly would happen if SCO Germany tomorrow started to make all the assertions mentioned in the settlement again in public?
In that case, Univention could sue them under the terms of the settlement for 10.000 Euro.
However, they could sue them under the above Article of the Act against Unfair Competition and caselaw anyway. All the settlement gives Univention on top of that is an easy way to put a number on their damage claims.
That number however is rather low, compared to what is at stake here. I doubt that this will have much of a deterrent effect on SCO Germany. They can always say that they have evidence now, even under the terms of the settlement.
And this settlement is only between SCO Germany and Univention. Every other Linux company in Germany is free to start their own lawsuit based on unfair competition law.
Electronic voting needs to solve two problems: Guarantee that every vote is counted exactly and guarantee that everyone can trust that result.
As Schneier points out, there can be no trust without a paper trail for verification. So it is quite important to support legislation mandating such a paper trail.
One way to fix this is to get rid of software patents altogether, as the European Parliament vote in September 2003 tried to do.
But as long as American lawmakers don't understand the damage done by software patents, one other possible workaround would be to build a Software Patent Defense Organization (SPDO) after the model of NATO. I described that briefly in a book on software patents I published in 2002 (in German).
The basic idea would be to copy Article 5 of the NATO Treaty. Members of the SPDO would treat any software patent based attacks on any member as an attack on themselves and promise to retaliate with all means at their disposal.
That might be a deterrent even for those obnoxious outfits that have no business themselves except that of suing from overbroad patents, so they can't be impressed by any counterclaims based on defensive patents. They would still need to assess the threat of having to fight every member of the SPDO at the same time.
The IBM and Apache open source software licenses cancelling all rights in retaliation to a software patents based attack are one step in this direction. But stronger measures might be necessary to keep the system from collapsing.
Basically it's just like spam. With the amount of damage by spam rising exponentially, people get annoyed and angry, and start to ask for strong countermeasures. With the amount of damage by software patent lawsuits rising, the same will be true here.
If even Amazon gets sued, now might be the point to start considering building a collective retaliation option.
One of the options the article discusses is to pay insurance premiums to prepare for the coming great onslaught of software patent litigation against open software projects.
The European Union has published a study on patent litigation insurance in March 2003. You can find it on their page on the Community Patent.
That study says that all experiments with this kind of insurance have not been particularly successful and have failed to provide adequate cover at affordable premiums.
I don't know if insurance or indemnification schemes will solve the problems ahead. However, both seem to be aimed at sharing the burden of dealing with litigation risks. That should be the basic idea. Just as people work together to develop great open source software, people should work together to defend it against litigation risks.
The strongest criticism of this legislation has been pointed out by Ross Anderson: Why do we need any special rules favoring plaintiffs in IP cases, as opposed to plaintiffs in all other cases?
Even if there were any good reason for such special treatment, it comes at the cost of duplicating Member States' civil procedure and damage calculation rules, making them much more complicated.
The correct way to do this would be to work within the framework of EU contract law harmonization.
I have a few more comments on my blog, but generally I agree with all proposals to limit the damage from this harmful legislation project.
Slashdot Mirror
Actually, the plan was not to sneak in a vote on the issue, but to have an approval without anybody really voting.
That is somewhat problematic from a logical point of view. How is the Council supposed to "approve" something without voting? This is somewhat surprising for people not familiar with the Council's Rules of Procedure. Basic values of democracy should require that votes are actually counted.
I have posted a couple of articles analyzing this mystery on my blog linked in the signature below.
dated July 13th. It is here:,
The legal reasoning at the very end of the document is just slighty longer as your average haiku . All it says is (translation mine):
"This is imposing unfair restricting conditions on the enterprise activity of PC makers and sellers in doing business with them and is therefore a case of number 13 of unfair business practices (FTC notice number 15/1982) and as such violating Article 19 of the Antimonopoly Act."
Readers of this reasoning are left without a clue when this kind of clause might be legal. There are many possible situations where this kind of defense against software patent claims might be quite reasonable.
One obvious one is a wide cross-license agreement between two companies. Did the FTC just outlaw those and make it impossible to cut through the software patent thicket?
It will be interesting to see if the FTC issues a less cryptic decision after the hearing with Microsoft.
to all opponents of software patents in Europe.
That's not only because the American president is not particularly popular in Western Europe, so whenever Americans open their mouth, Europeans are likely to do the exact opposite right now.
It's also because even those who fight for software patents have to pretend they don't want the extremism that passes for patent policy in America these days. Even they must appear to oppose business method patents, for example.
That means that any open assistance American assistance for the project to sell out the European software industry to American patent holders will backfire. It will help the opponents of said project.
That in turn means that all opponents of legalizing software patents in Europe should welcome all the clueless interventions on part of the American government.
this report and ask the same question:
Who would profit from legalizing software patents, the American or the European software industry?
of the American Constitution requires that no person "shall be compelled in any criminal case to be a witness against himself."
In a 1996 paper Greg S. Sergienko explains that in America, the Fifth Amendment would give a suspect the right to refuse handing over encryption keys.
I agree with that analysis.
Therefore, I think that any legislation based on Article 19 of the Cybercrime Treaty would only enable law enforcement authorities to request encryption keys from third parties who run no risk to be prosecuted themselves. Article 19 should not be constructed as requiring self-incrimination.
The guest essay says that one must assume that someone attacking the integrity of an election has at least a $100 million budget. While it is true that a lot of money is raised in elections, not all of that could be invested in a project to steal an election without anyone noticing. Therefore, the above estimate seems to be much too high.
on the sound recordings under Section 102 (a) 7, or is that impossible because only a human's conducting would qualify?
Anyone assuming that the EU commission can be ignored safely because they don't have strong enough sanctions available might be in for a nasty surprise.
$600 million might be not ever so much compared to Microsoft's profits.
However, if they stubbornly insist on violating European competition law, for example by not following the specific orders about unbundling and making available information, the EU could rather quickly fine them again. Maybe a billion this time.
And if that doesn't help, another two billion a few weeks later. A billion here, a billion there, and before you know it, you are talking about real money.
From May 1st on, the Commission also has the power to impose periodic penalty payments under Article 24 of Regulation 1/2003 on top of any additional fines.
The system would obviously be broken if anyone making a profit of more than 10 percent of turnover by violating competition law could get away with cashing the difference between that profit and the fine.
We will see what happens. I don't agree with the idea that EU competition law can be safely ignored.
It would have been nice to stop this proposal, since there is no reason awarding special favors to plaintiffs in intellectual property cases as opposed to everyone else.
On the other hand, there is a bright side even to this unfortunate development. The Directive says nothing about penal sanctions. Contrary to the original Commission proposal, there is nothing left of Article 21 on the circumvention of technical measures. The article on damages has also been reduced, there are no damages at the amount of double license fees.
Since this is a Directive, the fight is far from over. It will now move on to the 25 stages of national legislation.
What this settlement does not say: SCO agrees not to allege A, B, C, D...
What it does say: SCO agrees not to allege A, B.... unless they have evidence for it. And they agree not to announce having evidence unless they hand over such evidence to Univention within one month after the announcement.
The legal basis for Univention's claims against SCO Germany is Article 1 of the Act against Unfair Competition (UWG). In patent attorney Ralph Beyer's translation:
Relevant caselaw is a decision of the Hamburg Higher Regional Court (OLG) of August 31, 2000 (3 U 272/92, WRP 2001, 956-964) and a decision of the Federal Court of Justice of July 7, 1954 (Johann Maria Farina, BGHZ 14, 282). Under that caselaw it is an "act contrary to honest practices" to assert intellectual property rights in public without actually having them.
Now, what exactly would happen if SCO Germany tomorrow started to make all the assertions mentioned in the settlement again in public?
In that case, Univention could sue them under the terms of the settlement for 10.000 Euro.
However, they could sue them under the above Article of the Act against Unfair Competition and caselaw anyway. All the settlement gives Univention on top of that is an easy way to put a number on their damage claims.
That number however is rather low, compared to what is at stake here. I doubt that this will have much of a deterrent effect on SCO Germany. They can always say that they have evidence now, even under the terms of the settlement.
And this settlement is only between SCO Germany and Univention. Every other Linux company in Germany is free to start their own lawsuit based on unfair competition law.
Everyone interested in this issue should take a look at the VerifiedVoting Website.
Electronic voting needs to solve two problems: Guarantee that every vote is counted exactly and guarantee that everyone can trust that result.
As Schneier points out, there can be no trust without a paper trail for verification. So it is quite important to support legislation mandating such a paper trail.
There is precedent for this in the EU television Directive of 1989.
That Directive requires that European broadcasters reserve a majority of broadcast time for European works.
If China is attacked under WTO rules, they can point to this unfortunate precedent for cultural protectionism.
One way to fix this is to get rid of software patents altogether, as the European Parliament vote in September 2003 tried to do.
But as long as American lawmakers don't understand the damage done by software patents, one other possible workaround would be to build a Software Patent Defense Organization (SPDO) after the model of NATO. I described that briefly in a book on software patents I published in 2002 (in German).
The basic idea would be to copy Article 5 of the NATO Treaty. Members of the SPDO would treat any software patent based attacks on any member as an attack on themselves and promise to retaliate with all means at their disposal.
That might be a deterrent even for those obnoxious outfits that have no business themselves except that of suing from overbroad patents, so they can't be impressed by any counterclaims based on defensive patents. They would still need to assess the threat of having to fight every member of the SPDO at the same time.
The IBM and Apache open source software licenses cancelling all rights in retaliation to a software patents based attack are one step in this direction. But stronger measures might be necessary to keep the system from collapsing.
Basically it's just like spam. With the amount of damage by spam rising exponentially, people get annoyed and angry, and start to ask for strong countermeasures. With the amount of damage by software patent lawsuits rising, the same will be true here.
If even Amazon gets sued, now might be the point to start considering building a collective retaliation option.
One of the options the article discusses is to pay insurance premiums to prepare for the coming great onslaught of software patent litigation against open software projects.
The European Union has published a study on patent litigation insurance in March 2003. You can find it on their page on the Community Patent.
That study says that all experiments with this kind of insurance have not been particularly successful and have failed to provide adequate cover at affordable premiums.
I don't know if insurance or indemnification schemes will solve the problems ahead. However, both seem to be aimed at sharing the burden of dealing with litigation risks. That should be the basic idea. Just as people work together to develop great open source software, people should work together to defend it against litigation risks.
See also this post on my blog.
The strongest criticism of this legislation has been pointed out by Ross Anderson: Why do we need any special rules favoring plaintiffs in IP cases, as opposed to plaintiffs in all other cases?
Even if there were any good reason for such special treatment, it comes at the cost of duplicating Member States' civil procedure and damage calculation rules, making them much more complicated.
The correct way to do this would be to work within the framework of EU contract law harmonization.
I have a few more comments on my blog, but generally I agree with all proposals to limit the damage from this harmful legislation project.