In our fight against software patents in the EU, Microsoft's primary argument was money. They funded about every lobbying entity that supported software patents (EICTA, BSA, CompTIA, ACT, CampaignForCreativity...), and here's an interesting posting on NewsForge that lists some strategically placed donations by Microsoft and the BSA (over which Microsoft has a lot of influence) to influence the position of the Hungarian government, which supported software patents until the end although everyone in Hungay knew that it was not in the interest of that country: http://business.newsforge.com/comments.pl?sid=4066 8&cid=98839
The Massachusetts state administration actually wanted to migrate to open source, not just open document formats. The concept and its economic justification were in place. However, Massachusetts' Republican governor Matt Romney is rumored to have personally intervened in order to get that plan substantially diluted. I heard that from someone in Massachusetts who saw the state government's original plan.
Romney is close to Bush, and the Bush administration is close to Microsoft. More importantly, Romney has ambitions to run for president in three years, and he may have decided that he needs to be on good terms with Microsoft since Microsoft's "Corporate Political Action Committees" are among the largest political donors in the US. In last year's primaries, Microsoft supported a variety of would-be Democratic candidates.
EU Commission is two-faced, anti-trust case weak
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Microsoft Sues EU
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The EU Commission is the executive government of the European Union, and besides its purely administrative functions (such as anti-trust control and handing out EU subsidies), the Commission also has a key role in legislative processes. While it's the task of parliaments in most democracies to take legislative initiatives, it's always the Commission that first drafts a proposal for an EU directive, and the Commission has a project management role throughout the process.
The Commission doesn't really have a coherent strategy with respect to the software market. On the one hand, they are after Microsoft for allegedly anti-competitive conduct. On the other hand, the Commission was a key driving force behind the EU software patent directive that, fortunately, the European Parliament threw out on 6 July. The Commission has for years been lying to the European public with respect to the effect that their proposed legislation would have had. They said that it wouldn't have allowed for patents on software, but that's what it was all about, and everybody knew it. I know that some accuse the Bush government of having misled the public on Iraq and WMDs and terrorist connections, but the Commission lied even more shamelessly with respect to software patents.
Let's assume the Commission were to succeed with its Microsoft anti-trust case, and let's also assume they had succeeded with their effort to legalize software patents in Europe. On the bottom line, the software market would have been far less competitive than if the Commission hadn't done anything at all.
Of course, those are different DGS (directorates-general) of the Commission. It's DG COMP (Competition) that's after Microsoft, and DG MARKT (Internal Market) that proposed a software patent directive which was in fact drafted (!) by the Business Software Alliance, i.e. by a Microsoft-controlled organization.
The commissioner in charge of internal market policy, former Irish finance minister Charlie McCreevy, is the biggest ally Microsoft has ever had in politics. Note that Microsoft is Ireland's largest taxpayer because Microsoft conducts all of its European business out of the Irish tax haven (Ireland itself only accounts for about 1% of the EU market).
I can understand why some people in the Commission, with the support of some companies, pursue the Windows media player and API thing there. They believe that it's key to prove that Microsoft acts anti-competitively, as a warning and as a better basis for future proceedings like that. However, I don't think this "Windows Reduced Media Edition" thing makes any sense on its own if judged by any reasonable standards.
It's amusing to see how ever more companies try the same trick that IBM came up with in January. What's not amusing is how many, even including a few journalists, can still be fooled that way.
For the record, here's what I said about IBM's 500 patents in January: NOSOFTWAREPATENTS.COM CRITICIZES IBM FOR "DIVERSIONARY TACTICS"
By the time I issued those comments, I didn't even know that those 500 IBM patents were mostly patents on the verge of expiration, and included many patents that had little to do with software, including various medical (!) technology patents.
What's the point in those patent pledges? The only "value" in it is minimal. It's that some companies which are friendly toward OSS anyway make some formal promise not to use certain patents against certain open-source programs under certain open-source licenses, if not under certain circumstances. Companies either give away patents of hardly any value (like IBM did) or they tie their pledge to an open-source license that hardly anybody uses (like SUN did). Some of those pledges are legally pretty meaningless because of some loopholes that leave lots of room for interpretation.
The only meaningful contributions of patents to OSS would be donations of patents that serve the purpose mutually assured destruction, i.e.
(i) they are irrecovably made available for use by open-source developers or a trusted open-source entity against potential aggressors; (ii) they constitute monopolies on technical features that would really be hurtful to a company like Microsoft; and (iii) are not already subject to cross-licensing agreements between large corporations.
Anything less than that is of very little value and on the bottom line even negative because it diverts attention from what really needs to be done. Let's face it: No OSS developer is really going to look up something like an OSDL patent pledge database to find out which patents one is allowed to use. That's not practical. The problem is that too many critical patents are held by entities that are hostile toward OSS and are never ever going to pledge even a single patent.
I don't want to count any chickens before they're hatched, and with a highly complex legal issue like this it always depends upon a careful analysis of the specific terms an conditions, but HP's proposal to build up a patent arsenal that OSS can use for retaliatory purposes is infinitely more compelling that all of those patent pledges combined. It deserves further discussion and thought.
Your unstructured message calls into question whether you know how to make page breaks in HTML.
It's no brainwash to focus on the problem of software patents. The fact that something can be implemented in hardware as well doesn't make a patent any more desirable.
When I say that I'm against software patents, I'm against patents on algorithms that serve a pure data processing purpose and don't constitute an invention in a field of applied natural science. A superior anti-lock braking system that is powered by software (which software would most likely reside on a chip) is fine if software is used to shorten the braking distance or achieve a similar effect.
As for RSA, there is wide consensus in the world that pure mathematics shouldn't be patentable, and that's what RSA is all about. Like I said, I'm fine with patents on applied natural science, but not on pure program logic.
I won't rethink my anti-software patent stance because of anything that the FSF does (and in this case, the FSF hasn't even done anything, they're just considering).
My opposition to software patents stems from concerns over their effect on the economy, the industry (except for a few large corporations), and innovation. I'm pro-copyright, pro-trademarks, pro-trade secrets, and even pro-patents in those areas in which they're justified and necessary.
I'm not really FSF-aligned, nor have I worked with them politically. The NoSoftwarePatents.com campaign, which I founded last year, was backed by companies (initially Red Hat, MySQL AB, and Europe's largest web hosting company 1&1). Furthermore, I'm a computer game developer, and my project is.NET-based.
In the original version of the story, both statements (the one on software patents and the one on DRM) are disconcerting. In the corrected one, the patent thing is less problematic than before, and the DRM statement seems to have been right in the first place.
In the new version of the story, you can find a couple of quotes from me.
Let me additionally clarify that I don't want to raise general doubts concerning the FSF because it seems they're just brainstorming at this stage. I for my part believe that free and open-source software will do better if it's not perceived by politicians and by corporate decision-makers to be an anti-commercial movement. I've previously expressed that point of view, but on LWN.net my respective comments elicited a lot more heat than light.
The MSNBC article is based on the first version of the Reuters report, which misquotes the FSF on the provisions concerning software patents. Reuters has meanwhile updated the story. Here's a few links to the new and corrected version of the story: Washington Post eWeek Reuters.com
I've previously read about this patent reform bill, and my analysis is that it lopsidedly suits the interests of large corporations, and specifically Microsoft. The bill ensures that their machinery, which files for patents long before even a single line of code is written, gets patents that are harder to invalidate, while the unpleasant effects of other people's patents on those larger players (such as the risk of an injunction against them) are minimized. In a game that is based on mutually assured destruction as the only method of defense of the little guys against the big ones, that means an even more unbalanced situation than it already is.
Over here in Europe, we had that heated debate over the software patent directive. The European Parliament has to date not been lobbied nearly as aggressively on any legislation as on that one. The FFII and a campaign that I founded (and later gave to the FFII) succeeded in mobilizing citizens as well as small and medium-sized companies in all 25 member states of the European Union. Some MEPs claimed to have received about 75,000 E-mails on this issue. More importantly than that, lots of people went to Brussels (basically the EU capital) and Strasbourg (where the parliament has most of its votes) to meet with politicians.
Is there any active opposition to the BSA in the United States? The EU directive that the European Parliament voted down on 6 July was actually drafted by the BSA as the meta information in the European Commission's Word document showed (it contained the name of the BSA's European public policy director as an author).
By "active opposition" I mean a core group of activists who mobilize people throughout the United States. A free software or digital rights organization would be viewed as a bunch of idealists and not be taken nearly as seriously by a Congressman as a number of voters and employers from his constituency.
I'll just post a statement that I sent out to the press today (and for no other reason than making it easy for journalists to copy and paste, I refer to myself in the third person).
ANTI-SOFTWARE PATENT CAMPAIGNER SUPPORTS
LINUS TORVALDS ON TRADEMARK ISSUE,
ENJOINS THAT OPEN-SOURCE COMMUNITY
"SHOULD STEER CLEAR OF ANTI-IP POSITIONING"
Munich, Germany (22 August 2005) -- Recently, some media have reported on licensing fees that are charged to companies using the Linux brand name, which belongs to Linux creator Linus Torvalds. Those reports originated from Australia, where new licensing terms were announced and a lawyer sent out letters to users of the trademark. Subsequently, open-source activists in various parts of the world raised the question whether one could simultaneously oppose software patents and enforce trademarks.
A European anti-software patent campaigner expressed his support to Torvalds and the Linux Mark Institute, and enjoined that "all parts of the open-source community should steer clear of an anti-IP positioning, or else a vocal and radical minority will be responsible for unfavorable legislation and a reluctance by center-right governments to adopt open-source software". Mueller founded the NoSoftwarePatents.com campaign and helped prevent an EU software patent law. He has recently been added to Managing Intellectual Property magazine's list of the "top 50 most influential people in IP". Managing IP is the leading publication for IP lawyers worldwide.
Mueller, a book and software author who proudly says he has been living off intellectual property for twenty years, further explained his position: "It's lawless and pointless to indiscriminately oppose intellectual property rights. They're the foundation of the digital economy. We just have to ensure that they serve their real purpose of protecting innovators, and that's what software patents unfortunately don't do in 999 out of 1,000 cases. Software patents are a power play that benefits anti-competitive forces and productless extortioners, but copyright and trademarks generally reward those who create and market real products."
The campaigner is worried that "anti-IP radicalism could backfire" because it is, as he believes, "highly detrimental to the image of open source on the right wing". In the European Parliament, the conservative EPP (European People's Party) was the only group within which, according to Mueller's estimates, "a clear majority" would have favored software patents. Based on his own conversations with MEPs, Mueller attributes that fact largely to "some conservatives falsely equating open source and communism like Bill Gates did".
Those who question the legitimacy of Torvalds' trademark rights "play right in the hands of that propaganda", with severe consequences: "If open source is misperceived as an anti-commercial movement, conservative politicians are more inclined to support legislation that seriously hurts open source. The software patent debate will flare up again in Europe, and the U.S. Congress is working on a patent reform bill. Now that conservative governments, like that of California governor Arnold Schwarzenegger, are increasingly interested in using open-source software, it would be moronic to let open source and conservative pro-business values appear to be incompatible." Polls suggest that Germany, which advanced the open-source cause in Europe, may also have a conservative-led government after its September elections.
In addition to the debate over the Linux trademark, Mueller is also worried over the role that some organizations play in an American court by defending the developers of the "bnetd" software against computer game publisher Blizzard Entertainment: "It's very unwise for organizations like the EFF (Electronic Frontier Foundation) to rush to the aid of piracy-enablers. It makes it look like software patent critics are against copyright, which most of us are not."
Mueller compared the different intellectual property rights to real esta
It was absolutely necessary to point out the fundamental shortcomings of those patent pledges. Bruce was asked at LinuxWorld, and he told people what he thought, and I informed some of my media contacts (most of them in Europe) when the first reports came up and told them what's wrong with the OSDL strategy.
I can't see how it hurts open source or the anti-swpat cause if there's an impression of "fighting amongst ourselves" as you call it.
However, I can easily see how it would hurt to not talk about what really needs to be done against the swpat threat to open source. Compared to the top two priorities (political efforts and building up retaliatory strength), everything else is not even 1% as useful.
Unfortunately, the OSDL won't truly help at the political level because it's backed by some large corporations that lobbied aggressively for software patents in Europe (IBM, Intel, Nokia, Ericsson) as strategic allies of Microsoft on that issue. Maybe the OSDL could nonetheless help with building an arsenal that would deter others from attacking open source with patents (or to force them into cross-licensing in such a scenario), but so far there's no indication that they're pursuing that strategy.
Swpats are a much more serious issue than any bad press on internal fights within the open-source community. It's easy to unite an entire community behind a compelling and well-thought-out strategy. If the OSDL announces something that makes sense, I'm sure everyone will support them and there won't be any internal fighting.
The E-mail address works, and I can be contacted there. However, if I receive an E-mail from an unknown sender and the subject line doesn't clearly se it apart from spam, then there's a certain risk that I accidentally delete it.
Patents are a harsh reality, and I agree with you that it would be pointless to oppose the use of patents for the protection of open source because of any anti-patent fundamentalism.
However, the patent game is a tricky one, and it has to be played right. There are approaches that are truly beneficial, and some that are not. Those that appear to help while they don't (such as the IBM, Sun and Nokia patent pledges) are counterproductive because they fool people into thinking that there's a solution in place when they should actually take initiatives toward real solutions. We must not settle for cheap PR stunts of large corporations. Instead, we should insist on them making truly valuable contributions, and we must not forget that the political level is the only one at which the software patent problem can truly be solved.
I've explained my thinking more specifically in this posting.
I don't think it's reasonable to generally claim that Linus Torvalds has more credibility than Bruce Perens. Obviously, Linus is in a strong position and not dependent upon the OSDL even if he works for them, but everyone (no matter how independent) is always more likely to do his colleagues a favor.
If you read Linus' comment on the OSDL patent pool precisely, it doesn't actually say much: "Making it easier for companies and communities that have patents to make those patents available in a common pool for people to use is one way to try to help developers deal with the threat."
Saying that it's "one way to try to help..." is actually a very weak endorsement. If someone is absolutely convinced of something being hugely helpful, he'd sound a bit more enthusiastic. Instead of "is one way to try to help", he could have said "is the way to address the problem", but he's smart enough to know how little value there is in the types of patent pledges that IBM, Sun and Nokia made in the past.
I'm the founder of the European NoSoftwarePatents.com campaign and I've commented on this overall issue more comprehensively here, but let me reply specifically to this call on the OSS community "to work together instead of becoming splintered with bad press like this":
It's one of the strengths of open-source projects and initiatives that there are debates on mailing lists (and on slashdot). That's not the same as being divise, even if it happens via the media.
It was absolutely necessary to point out that those IBM-style "patent pledges" are fundamentally flawed. They are a solution to a problem that doesn't exist (the possibility of IBM suing Linux users), and they don't solve the real problem because they don't deter an enemy of open source from starting a patent litigation.
The OSDL issued a press release, so Bruce and I had no other choice but talking to the media as well (totally independently from each other). If the OSDL had asked any of us before, we would have given them the very same feedback, privately.
Last year I founded the NoSoftwarePatents.com campaign, which I transferred to the FFII earlier this year. On 6 July, the European Parliament threw out a proposal that would have given software patents a stronger legal basis in Europe. There are tens of thousands of software patents in Europe, but there is very little litigation activity because national courts in major European countries have already invalidated many software patents on the grounds of a multi-national treaty (the European Patent Convention) that goes back to the year 1973 and excludes computer programs from the scope of patentable subject matter. I'm currently writing a book on our fight against that EU software patent directive.
I reacted with similar comments to the OSDL announcement as Bruce, who BTW held a great speech on open source and software patents at a conference in the European Parliament last November. My comments were published on various IT websites, such as News.com.
I just established a criterion: It will only be helpful if and when they gather patents with which they could, for instance, countersue an organization like Microsoft.
The so-called patent pledges that IBM, Sun and Nokia made were attempts to fool those who don't know exactly how the patent game is played (and who don't read the fine print of those terms). Not a single one of those patents could be turned against a company like Microsoft because the holders of those patents already have, as Bruce noted in his comments, cross-licensing agreements in place that are non-aggression pacts with respect to those patents. Apart from that, those patent pledges have lots of strings attached. In some cases, the respective patents are not even valuable (for instance, IBM pledged some medical technology patents). Even if they are, the pledges are tied to certain open-source programs (Nokia's pledge only relates to the Linux kernel, only a small part of Linux itself, and even Linux is just a small part of open source) and/or licenses (that's the problem with Sun's pledge). Then there are clauses in there that talk about exceptions, such as if a company needs to defend itself, and those vague wordings are loopholes that can render an entire pledge useless when push comes to shove.
If any of those large companies are serious about building a protective shield for open source against its competitors, then they have to provide a trustworthy and truly independent open-source body with patents that can be used for retaliatory strikes (i.e., are not part of any existing cross-licensing deals) and consequently are a basis for forcing potential aggressors into cross-licensing agreements to protect all of open source. Simply put, if you have a few dozen patents that could be used to stop the distribution of Windows, then you have a bargaining position. Everything else is useless.
Note that a patent arsenal like this wouldn't work against patent trolls with no products of their own, and an aggressor could hide behind a remote-controlled troll like some suspected in the SCO case.
If people like Bruce Perens and I criticize those patent pledges, we don't do it to hurt our common cause nor to be in the media, but because the patent game is a tricky one and there's a lot of eyewash and brainwash going on. It's important to educate journalists and the community how to take a more knowledgeable perspective on those initiatives. It would be a major mistake to accept totally pointless PR tricks instead of insisting on real solutions. Our criticism is ammunition for the positive forces inside those organizations to ask for truly meaningful measures.
The only definitive solution of the patnet problem is at the legislative level, and until that happens, the only form of defense that makes any sense is the threat of mutually assured destruction.
What the EU Council is trying to do is, way above and beyond the issue of software patents, an assault at democracy itself. In a democratic system based on lawfulness, a decision needs to meet the majority requirements (in this case: the requirements for a qualified majority in the EU Council) on the day of the formal decision, not more than 6 months earlier.
Since the EU Council's political agreement on May 18th,
- the Dutch parliament called on its government to abstain (July 1st; abstention in the Council has technically the same effect as voting against)
- the voting weights changed (November 1st, see http://www.nosoftwarepatents.com/docs/041101qm.pdf)
- the Polish government clarified that it cannot support the proposal in question (http://nosoftwarepatents.com/phpBB2/viewtopic.php ?t=158 , November 16th)
- all four groups in the German parliament agreed on a joint motion against the Council's proposal (http://nosoftwarepatents.com/phpBB2/viewtopic.php ?t=222)
Consequently, the Belgian minister of economic affairs even said last week that there was no more qualified majority in place: http://nosoftwarepatents.com/phpBB2/viewtopic.php? t=233
BTW, it's not just my opinion that it would be antidemocratic if the Council took the decision in question. That was said last week by Othmar Karas MEP, who is a vice president of the largest group in the European Parliament, the conservative European People's Party (Christian Democrats) - European Democrats.
I'm also against software patents but I think it's too simple an explanation to blame the large corporations only. Yes, the big organizations typically want software patents, and I see them how they push very hard for software patents in the EU where we have that ongoing legislative process.
However, I also see the major mistake of small and medium-sized enterprises: They don't act. Large corporations understand that politics affect business, so they view political activities as part of their business. Small and medium-sized enterprises are usually run by people who believe that it's "prudent" to focus on the "core business" and not to do anything serious on the political front.
The narrowmindedness and ignorance of most small and medium-sized enterprises makes it very easy for the large corporations to get what they want, and to defend it later.
Look at most industry associations: They claim to speak on behalf of numerous small companies but are pretty much under the control of a few large members. An organization like the SIIA should fight against software patents every day. It should be their #1 priority because nothing is a bigger business risk to software companies than those absurd software patents. Instead, the SIIA just asks for more funds to be provided to the USPTO. Sure, with more resources, the USPTO may be able to examine patent applications more carefully. Still the real solution is to do away with patents on computer program logic, i.e. mental steps. And where are the organizations, except for some open source and civil rights organizations, that truly fight against software patents?
Maybe, at the end of the day, many small and medium-sized enterprises just pay the price for political ignorance and inactivity. Right now, there would be an excellent chance to get software patents abolished in the EU, and that would be a signal for other regions of the world (especially if things work out well for the EU, and I'm quite sure they would because software patents stifle innovation and adversely affect economic growth).
The [Bavarian] state capital Munich certainly holds on to the Linux project that was decided on by its city council, and upholds its strategic decision in favor of an open source project. [reference to dpa report, a German news agency]
"It was just yesterday that the IT experts of the city explained the strategic benefits of its Linux project to the city administrations of Augsburg and Nuremberg [two other Bavarian cities, Nuremberg is the 2nd largest one]. We were pleased to see that those cities, like Vienna (Austria), are interested in Munich's open source solution." All that is correct to say is that the bidding process for the base client has been temporarily put on hold because the legal and financial risks due to a draft directive proposed by the EU Competitiveness Council (which would allow for the very broad patentability of software) need to be checked into.
In the opinion of the mayor, it is now the highest priority that all European municipalities and enterprises that have a vested interest in open source take influence on the EU institutions and the national governments of the EU member states. The goal must be that the envisioned directive does not take effect as a European law. In that regard, Munich concurs with a decision by the European Parliament, "which once again is attempted to be turned around and into the opposite, by small EU committees that pander to the interests of large corporations".
It's certainly a double-edged sword but the thing is that it's better to be wise before and not after the event.
We all want open source to succeed. All companies that have a vested interest in open source should fight software patents. Fighting against software patents during the ongoing legislative process means more than issuing a statement here or a press release there. We need to do forceful things or we'll lose out to the pro-patent lobby.
Talk to people inside your company (and feel free to refer them to me if they want to get serious about the political debate here in the EU).
If the EU were to pass the "directive on computer-implemented inventions" (commonly known as software patent directive) in the May 18, 2004 version, then there is no assurance that Munich can continue on with the migration project.
I was in the audience a week and a half ago when Wilhelm Hoegner, the CIO of Munich, talked about the threat from software patents in the light of that EU legislation that is in the works. He understands the problem really well. Today we are talking about the patent issues that have been identified by the FFII. In the mid to long term, we are talking about suitability-to-task. If new areas of technology are increasingly turned into vast patent minefields by larger players on the one hand and productless patent profiteers on the other hand, then that will stifle innovation and will impose restrictions on the future functionality and feature set of Linux.
My theory is that the current open source stack is kind of acceptable to the market incumbents. However, I doubt that they would just sit on thousands of tens of thousands of patents on a per-company basis and not leverage those if open source continues to gain popularity.
Let's hope that all of this will be reduced to a purely political thing. In order for us to be able to say so one day, the EU has to disallow the patentability of computer program logic in a truly effective manner (such as the proposal that the European Parliament made in September of 2003, which would really solve the problem in a dependable fashion).
They are with Linux and they are against software patents. I know that because I helped them last Friday with some of the PR work for their motions that made the city administration put the LiMux project on hold for now.
If everyone in the industry and in politics understood that you can only be either for open source or for software patents, it would all be a lot easier. Some say that software patents have not hurt open source so far but today we have the first incident that shows how software patents can put a hallmark Linux project in jeopardy.
What people need to understand is that the competitors and enemies of open source may very well accept today's stack of open source software, but they lay huge patent minefields in new areas of technology so they can arbitrary restrict the functionality of open source and keep its market share limited in the future. However, the best that can happen to all of us is an unfettered proliferation of open source.
I'm not just involved in open source. I'm also developing a closed-source computer game based on the.NET framework. I really love.NET but I want its developers to face open source competition because that's the best assurance that they'll do their best in the future.
I think the question of how to best structure the EU, and how much power to give to the EUParl vs. the other institutions, is a little more complex.
Of course, the swpat story shows that it would generally be nice to have a European Parliament with much more power in place. We might say that now because last time the parliament was on our side and voted against swpats. If we had the Council and Commission on our side and the parliament against us, we might make some other points.
A powerful EUParl would be great but it would mean a "United States of Europe" type of state. The problem with a parliament is that there can only be a single method in place that determines how many representatives are elected by which member state. What some EU member states want, however, is for a more complex system where you need different types of majorities to make anything happen, and some are more favorable to the large member states and some are better for the small ones.
It's a strange mix-up of executive and legislative powers that the executive authorities of the member states have the key legislative power (through the EU Council and Commission) at the level of the EU. The swpat debate shows what this leads to: You have the national patent executives on a working group of the EU Council, and they push for exactly the patent legislation that they (and their friends at the European Patent Office) want. Yes, that's a structural shortcoming. However, we have to take into account that it would be a tough decision for some countries to cede more of their power to the EU.
Even though the problem is clear, it's hard to solve, and the best we can hope for is that the EUParl gradually gets more power. We also have a chicken-and-egg problem here: As long as voter turnout in EUParl elections is low, the EUParl doesn't have the standing it deserves. As long as it doesn't have that standing, voters don't turn out. Some EUParl politicians complain about the lack of media attention to the EUParl, and they're right, but it's the same type of chicken-and-egg problem as well.
I very much agree on your logic as to why program logic should not be patented, and why double protection (copyright plus patentability) is an insanity.
To us this is all very obvious. To politicians, however, it is equally obvious to do what the large corporations (which also donate most money to the political parties) tell them they want.
In my opinion, the EU is now the decisive battleground. In such countries as China and India, software is not patentable yet. If the EU adopts swpats, then it means that all of the industrialized First World has them (it seems almost certain that Australia will get swpats as part of a free trade agreement with the US, and Japan is already under a US-style swpat regime). So if the EU decision is pro-swpat as well, then China and India will probably just do what the wealthy part of the world has done.
If, however, we put an end to the expansion of the swpat system by democratic means in Europe, then some of the emerging markets will be more comfortable without swpats, and the US would be put at a competitive disadvantage and may at some point in time revisit the issue. If patent inflation continues, then even some of the large corporations will call for a swpat reform.
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!
Slashdot Mirror
http://business.newsforge.com/comments.pl?sid=406
The Massachusetts state administration actually wanted to migrate to open source, not just open document formats. The concept and its economic justification were in place. However, Massachusetts' Republican governor Matt Romney is rumored to have personally intervened in order to get that plan substantially diluted. I heard that from someone in Massachusetts who saw the state government's original plan.
Romney is close to Bush, and the Bush administration is close to Microsoft. More importantly, Romney has ambitions to run for president in three years, and he may have decided that he needs to be on good terms with Microsoft since Microsoft's "Corporate Political Action Committees" are among the largest political donors in the US. In last year's primaries, Microsoft supported a variety of would-be Democratic candidates.
The Commission doesn't really have a coherent strategy with respect to the software market. On the one hand, they are after Microsoft for allegedly anti-competitive conduct. On the other hand, the Commission was a key driving force behind the EU software patent directive that, fortunately, the European Parliament threw out on 6 July. The Commission has for years been lying to the European public with respect to the effect that their proposed legislation would have had. They said that it wouldn't have allowed for patents on software, but that's what it was all about, and everybody knew it. I know that some accuse the Bush government of having misled the public on Iraq and WMDs and terrorist connections, but the Commission lied even more shamelessly with respect to software patents.
Let's assume the Commission were to succeed with its Microsoft anti-trust case, and let's also assume they had succeeded with their effort to legalize software patents in Europe. On the bottom line, the software market would have been far less competitive than if the Commission hadn't done anything at all.
Of course, those are different DGS (directorates-general) of the Commission. It's DG COMP (Competition) that's after Microsoft, and DG MARKT (Internal Market) that proposed a software patent directive which was in fact drafted (!) by the Business Software Alliance, i.e. by a Microsoft-controlled organization.
The commissioner in charge of internal market policy, former Irish finance minister Charlie McCreevy, is the biggest ally Microsoft has ever had in politics. Note that Microsoft is Ireland's largest taxpayer because Microsoft conducts all of its European business out of the Irish tax haven (Ireland itself only accounts for about 1% of the EU market).
I can understand why some people in the Commission, with the support of some companies, pursue the Windows media player and API thing there. They believe that it's key to prove that Microsoft acts anti-competitively, as a warning and as a better basis for future proceedings like that. However, I don't think this "Windows Reduced Media Edition" thing makes any sense on its own if judged by any reasonable standards.
For the record, here's what I said about IBM's 500 patents in January:
NOSOFTWAREPATENTS.COM CRITICIZES IBM FOR "DIVERSIONARY TACTICS"
By the time I issued those comments, I didn't even know that those 500 IBM patents were mostly patents on the verge of expiration, and included many patents that had little to do with software, including various medical (!) technology patents.
Like Bruce Perens, I also criticized the recent OSDL announcement:
eWeek: OSDL Begins Open-Source Patent Commons
What's the point in those patent pledges? The only "value" in it is minimal. It's that some companies which are friendly toward OSS anyway make some formal promise not to use certain patents against certain open-source programs under certain open-source licenses, if not under certain circumstances. Companies either give away patents of hardly any value (like IBM did) or they tie their pledge to an open-source license that hardly anybody uses (like SUN did). Some of those pledges are legally pretty meaningless because of some loopholes that leave lots of room for interpretation.
The only meaningful contributions of patents to OSS would be donations of patents that serve the purpose mutually assured destruction, i.e.
(i) they are irrecovably made available for use by open-source developers or a trusted open-source entity against potential aggressors;
(ii) they constitute monopolies on technical features that would really be hurtful to a company like Microsoft; and
(iii) are not already subject to cross-licensing agreements between large corporations.
Anything less than that is of very little value and on the bottom line even negative because it diverts attention from what really needs to be done. Let's face it: No OSS developer is really going to look up something like an OSDL patent pledge database to find out which patents one is allowed to use. That's not practical. The problem is that too many critical patents are held by entities that are hostile toward OSS and are never ever going to pledge even a single patent.
An HP executive actually made a suggestion that potentially meets the criteria I outlined:
Moving on With Patents and Open-Source Software
I don't want to count any chickens before they're hatched, and with a highly complex legal issue like this it always depends upon a careful analysis of the specific terms an conditions, but HP's proposal to build up a patent arsenal that OSS can use for retaliatory purposes is infinitely more compelling that all of those patent pledges combined. It deserves further discussion and thought.
It's no brainwash to focus on the problem of software patents. The fact that something can be implemented in hardware as well doesn't make a patent any more desirable.
When I say that I'm against software patents, I'm against patents on algorithms that serve a pure data processing purpose and don't constitute an invention in a field of applied natural science. A superior anti-lock braking system that is powered by software (which software would most likely reside on a chip) is fine if software is used to shorten the braking distance or achieve a similar effect.
As for RSA, there is wide consensus in the world that pure mathematics shouldn't be patentable, and that's what RSA is all about. Like I said, I'm fine with patents on applied natural science, but not on pure program logic.
My opposition to software patents stems from concerns over their effect on the economy, the industry (except for a few large corporations), and innovation. I'm pro-copyright, pro-trademarks, pro-trade secrets, and even pro-patents in those areas in which they're justified and necessary.
I'm not really FSF-aligned, nor have I worked with them politically. The NoSoftwarePatents.com campaign, which I founded last year, was backed by companies (initially Red Hat, MySQL AB, and Europe's largest web hosting company 1&1). Furthermore, I'm a computer game developer, and my project is .NET-based.
I recently warned the open-source community against taking a radically anti-IP position:
ag-IP-news: Open Source Community Should Steer Clear of Anti-IP Positioning Warns Mueller
In the new version of the story, you can find a couple of quotes from me.
Let me additionally clarify that I don't want to raise general doubts concerning the FSF because it seems they're just brainstorming at this stage. I for my part believe that free and open-source software will do better if it's not perceived by politicians and by corporate decision-makers to be an anti-commercial movement. I've previously expressed that point of view, but on LWN.net my respective comments elicited a lot more heat than light.
The MSNBC article is based on the first version of the Reuters report, which misquotes the FSF on the provisions concerning software patents. Reuters has meanwhile updated the story. Here's a few links to the new and corrected version of the story:
Washington Post
eWeek
Reuters.com
Over here in Europe, we had that heated debate over the software patent directive. The European Parliament has to date not been lobbied nearly as aggressively on any legislation as on that one. The FFII and a campaign that I founded (and later gave to the FFII) succeeded in mobilizing citizens as well as small and medium-sized companies in all 25 member states of the European Union. Some MEPs claimed to have received about 75,000 E-mails on this issue. More importantly than that, lots of people went to Brussels (basically the EU capital) and Strasbourg (where the parliament has most of its votes) to meet with politicians.
Is there any active opposition to the BSA in the United States? The EU directive that the European Parliament voted down on 6 July was actually drafted by the BSA as the meta information in the European Commission's Word document showed (it contained the name of the BSA's European public policy director as an author).
By "active opposition" I mean a core group of activists who mobilize people throughout the United States. A free software or digital rights organization would be viewed as a bunch of idealists and not be taken nearly as seriously by a Congressman as a number of voters and employers from his constituency.
ANTI-SOFTWARE PATENT CAMPAIGNER SUPPORTS
LINUS TORVALDS ON TRADEMARK ISSUE,
ENJOINS THAT OPEN-SOURCE COMMUNITY
"SHOULD STEER CLEAR OF ANTI-IP POSITIONING"
Munich, Germany (22 August 2005) -- Recently, some media have reported on licensing fees that are charged to companies using the Linux brand name, which belongs to Linux creator Linus Torvalds. Those reports originated from Australia, where new licensing terms were announced and a lawyer sent out letters to users of the trademark. Subsequently, open-source activists in various parts of the world raised the question whether one could simultaneously oppose software patents and enforce trademarks.
A European anti-software patent campaigner expressed his support to Torvalds and the Linux Mark Institute, and enjoined that "all parts of the open-source community should steer clear of an anti-IP positioning, or else a vocal and radical minority will be responsible for unfavorable legislation and a reluctance by center-right governments to adopt open-source software". Mueller founded the NoSoftwarePatents.com campaign and helped prevent an EU software patent law. He has recently been added to Managing Intellectual Property magazine's list of the "top 50 most influential people in IP". Managing IP is the leading publication for IP lawyers worldwide.
Mueller, a book and software author who proudly says he has been living off intellectual property for twenty years, further explained his position: "It's lawless and pointless to indiscriminately oppose intellectual property rights. They're the foundation of the digital economy. We just have to ensure that they serve their real purpose of protecting innovators, and that's what software patents unfortunately don't do in 999 out of 1,000 cases. Software patents are a power play that benefits anti-competitive forces and productless extortioners, but copyright and trademarks generally reward those who create and market real products."
The campaigner is worried that "anti-IP radicalism could backfire" because it is, as he believes, "highly detrimental to the image of open source on the right wing". In the European Parliament, the conservative EPP (European People's Party) was the only group within which, according to Mueller's estimates, "a clear majority" would have favored software patents. Based on his own conversations with MEPs, Mueller attributes that fact largely to "some conservatives falsely equating open source and communism like Bill Gates did".
Those who question the legitimacy of Torvalds' trademark rights "play right in the hands of that propaganda", with severe consequences: "If open source is misperceived as an anti-commercial movement, conservative politicians are more inclined to support legislation that seriously hurts open source. The software patent debate will flare up again in Europe, and the U.S. Congress is working on a patent reform bill. Now that conservative governments, like that of California governor Arnold Schwarzenegger, are increasingly interested in using open-source software, it would be moronic to let open source and conservative pro-business values appear to be incompatible." Polls suggest that Germany, which advanced the open-source cause in Europe, may also have a conservative-led government after its September elections.
In addition to the debate over the Linux trademark, Mueller is also worried over the role that some organizations play in an American court by defending the developers of the "bnetd" software against computer game publisher Blizzard Entertainment: "It's very unwise for organizations like the EFF (Electronic Frontier Foundation) to rush to the aid of piracy-enablers. It makes it look like software patent critics are against copyright, which most of us are not."
Mueller compared the different intellectual property rights to real esta
I can't see how it hurts open source or the anti-swpat cause if there's an impression of "fighting amongst ourselves" as you call it.
However, I can easily see how it would hurt to not talk about what really needs to be done against the swpat threat to open source. Compared to the top two priorities (political efforts and building up retaliatory strength), everything else is not even 1% as useful.
Unfortunately, the OSDL won't truly help at the political level because it's backed by some large corporations that lobbied aggressively for software patents in Europe (IBM, Intel, Nokia, Ericsson) as strategic allies of Microsoft on that issue. Maybe the OSDL could nonetheless help with building an arsenal that would deter others from attacking open source with patents (or to force them into cross-licensing in such a scenario), but so far there's no indication that they're pursuing that strategy.
Swpats are a much more serious issue than any bad press on internal fights within the open-source community. It's easy to unite an entire community behind a compelling and well-thought-out strategy. If the OSDL announces something that makes sense, I'm sure everyone will support them and there won't be any internal fighting.
The E-mail address works, and I can be contacted there. However, if I receive an E-mail from an unknown sender and the subject line doesn't clearly se it apart from spam, then there's a certain risk that I accidentally delete it.
I didn't get any direct E-mail from you.
However, the patent game is a tricky one, and it has to be played right. There are approaches that are truly beneficial, and some that are not. Those that appear to help while they don't (such as the IBM, Sun and Nokia patent pledges) are counterproductive because they fool people into thinking that there's a solution in place when they should actually take initiatives toward real solutions. We must not settle for cheap PR stunts of large corporations. Instead, we should insist on them making truly valuable contributions, and we must not forget that the political level is the only one at which the software patent problem can truly be solved.
I've explained my thinking more specifically in this posting.
If you read Linus' comment on the OSDL patent pool precisely, it doesn't actually say much: "Making it easier for companies and communities that have patents to make those patents available in a common pool for people to use is one way to try to help developers deal with the threat."
Saying that it's "one way to try to help..." is actually a very weak endorsement. If someone is absolutely convinced of something being hugely helpful, he'd sound a bit more enthusiastic. Instead of "is one way to try to help", he could have said "is the way to address the problem", but he's smart enough to know how little value there is in the types of patent pledges that IBM, Sun and Nokia made in the past.
It's one of the strengths of open-source projects and initiatives that there are debates on mailing lists (and on slashdot). That's not the same as being divise, even if it happens via the media.
It was absolutely necessary to point out that those IBM-style "patent pledges" are fundamentally flawed. They are a solution to a problem that doesn't exist (the possibility of IBM suing Linux users), and they don't solve the real problem because they don't deter an enemy of open source from starting a patent litigation.
The OSDL issued a press release, so Bruce and I had no other choice but talking to the media as well (totally independently from each other). If the OSDL had asked any of us before, we would have given them the very same feedback, privately.
I reacted with similar comments to the OSDL announcement as Bruce, who BTW held a great speech on open source and software patents at a conference in the European Parliament last November. My comments were published on various IT websites, such as News.com.
I just established a criterion: It will only be helpful if and when they gather patents with which they could, for instance, countersue an organization like Microsoft.
The so-called patent pledges that IBM, Sun and Nokia made were attempts to fool those who don't know exactly how the patent game is played (and who don't read the fine print of those terms). Not a single one of those patents could be turned against a company like Microsoft because the holders of those patents already have, as Bruce noted in his comments, cross-licensing agreements in place that are non-aggression pacts with respect to those patents. Apart from that, those patent pledges have lots of strings attached. In some cases, the respective patents are not even valuable (for instance, IBM pledged some medical technology patents). Even if they are, the pledges are tied to certain open-source programs (Nokia's pledge only relates to the Linux kernel, only a small part of Linux itself, and even Linux is just a small part of open source) and/or licenses (that's the problem with Sun's pledge). Then there are clauses in there that talk about exceptions, such as if a company needs to defend itself, and those vague wordings are loopholes that can render an entire pledge useless when push comes to shove.
If any of those large companies are serious about building a protective shield for open source against its competitors, then they have to provide a trustworthy and truly independent open-source body with patents that can be used for retaliatory strikes (i.e., are not part of any existing cross-licensing deals) and consequently are a basis for forcing potential aggressors into cross-licensing agreements to protect all of open source. Simply put, if you have a few dozen patents that could be used to stop the distribution of Windows, then you have a bargaining position. Everything else is useless.
Note that a patent arsenal like this wouldn't work against patent trolls with no products of their own, and an aggressor could hide behind a remote-controlled troll like some suspected in the SCO case.
If people like Bruce Perens and I criticize those patent pledges, we don't do it to hurt our common cause nor to be in the media, but because the patent game is a tricky one and there's a lot of eyewash and brainwash going on. It's important to educate journalists and the community how to take a more knowledgeable perspective on those initiatives. It would be a major mistake to accept totally pointless PR tricks instead of insisting on real solutions. Our criticism is ammunition for the positive forces inside those organizations to ask for truly meaningful measures.
The only definitive solution of the patnet problem is at the legislative level, and until that happens, the only form of defense that makes any sense is the threat of mutually assured destruction.
What the EU Council is trying to do is, way above and beyond the issue of software patents, an assault at democracy itself. In a democratic system based on lawfulness, a decision needs to meet the majority requirements (in this case: the requirements for a qualified majority in the EU Council) on the day of the formal decision, not more than 6 months earlier. Since the EU Council's political agreement on May 18th, - the Dutch parliament called on its government to abstain (July 1st; abstention in the Council has technically the same effect as voting against) - the voting weights changed (November 1st, see http://www.nosoftwarepatents.com/docs/041101qm.pdf )
- the Polish government clarified that it cannot support the proposal in question (http://nosoftwarepatents.com/phpBB2/viewtopic.php ?t=158 , November 16th)
- all four groups in the German parliament agreed on a joint motion against the Council's proposal (http://nosoftwarepatents.com/phpBB2/viewtopic.php ?t=222)
Consequently, the Belgian minister of economic affairs even said last week that there was no more qualified majority in place: http://nosoftwarepatents.com/phpBB2/viewtopic.php? t=233
BTW, it's not just my opinion that it would be antidemocratic if the Council took the decision in question. That was said last week by Othmar Karas MEP, who is a vice president of the largest group in the European Parliament, the conservative European People's Party (Christian Democrats) - European Democrats.
I'm also against software patents but I think it's too simple an explanation to blame the large corporations only. Yes, the big organizations typically want software patents, and I see them how they push very hard for software patents in the EU where we have that ongoing legislative process.
However, I also see the major mistake of small and medium-sized enterprises: They don't act. Large corporations understand that politics affect business, so they view political activities as part of their business. Small and medium-sized enterprises are usually run by people who believe that it's "prudent" to focus on the "core business" and not to do anything serious on the political front.
The narrowmindedness and ignorance of most small and medium-sized enterprises makes it very easy for the large corporations to get what they want, and to defend it later.
Look at most industry associations: They claim to speak on behalf of numerous small companies but are pretty much under the control of a few large members. An organization like the SIIA should fight against software patents every day. It should be their #1 priority because nothing is a bigger business risk to software companies than those absurd software patents. Instead, the SIIA just asks for more funds to be provided to the USPTO. Sure, with more resources, the USPTO may be able to examine patent applications more carefully. Still the real solution is to do away with patents on computer program logic, i.e. mental steps. And where are the organizations, except for some open source and civil rights organizations, that truly fight against software patents?
Maybe, at the end of the day, many small and medium-sized enterprises just pay the price for political ignorance and inactivity. Right now, there would be an excellent chance to get software patents abolished in the EU, and that would be a signal for other regions of the world (especially if things work out well for the EU, and I'm quite sure they would because software patents stifle innovation and adversely affect economic growth).
http://www.muenchen.de/Rathaus/bb_dir/presse/2004/ 08/99502/limux_softwarepatent.html
Here's a translation:
The [Bavarian] state capital Munich certainly holds on to the Linux project that was decided on by its city council, and upholds its strategic decision in favor of an open source project. [reference to dpa report, a German news agency]
"It was just yesterday that the IT experts of the city explained the strategic benefits of its Linux project to the city administrations of Augsburg and Nuremberg [two other Bavarian cities, Nuremberg is the 2nd largest one]. We were pleased to see that those cities, like Vienna (Austria), are interested in Munich's open source solution." All that is correct to say is that the bidding process for the base client has been temporarily put on hold because the legal and financial risks due to a draft directive proposed by the EU Competitiveness Council (which would allow for the very broad patentability of software) need to be checked into.
In the opinion of the mayor, it is now the highest priority that all European municipalities and enterprises that have a vested interest in open source take influence on the EU institutions and the national governments of the EU member states. The goal must be that the envisioned directive does not take effect as a European law. In that regard, Munich concurs with a decision by the European Parliament, "which once again is attempted to be turned around and into the opposite, by small EU committees that pander to the interests of large corporations".
It's certainly a double-edged sword but the thing is that it's better to be wise before and not after the event.
We all want open source to succeed. All companies that have a vested interest in open source should fight software patents. Fighting against software patents during the ongoing legislative process means more than issuing a statement here or a press release there. We need to do forceful things or we'll lose out to the pro-patent lobby.
Talk to people inside your company (and feel free to refer them to me if they want to get serious about the political debate here in the EU).
I wouldn't downplay it like that.
If the EU were to pass the "directive on computer-implemented inventions" (commonly known as software patent directive) in the May 18, 2004 version, then there is no assurance that Munich can continue on with the migration project.
I was in the audience a week and a half ago when Wilhelm Hoegner, the CIO of Munich, talked about the threat from software patents in the light of that EU legislation that is in the works. He understands the problem really well. Today we are talking about the patent issues that have been identified by the FFII. In the mid to long term, we are talking about suitability-to-task. If new areas of technology are increasingly turned into vast patent minefields by larger players on the one hand and productless patent profiteers on the other hand, then that will stifle innovation and will impose restrictions on the future functionality and feature set of Linux.
My theory is that the current open source stack is kind of acceptable to the market incumbents. However, I doubt that they would just sit on thousands of tens of thousands of patents on a per-company basis and not leverage those if open source continues to gain popularity.
Let's hope that all of this will be reduced to a purely political thing. In order for us to be able to say so one day, the EU has to disallow the patentability of computer program logic in a truly effective manner (such as the proposal that the European Parliament made in September of 2003, which would really solve the problem in a dependable fashion).
They are with Linux and they are against software patents. I know that because I helped them last Friday with some of the PR work for their motions that made the city administration put the LiMux project on hold for now.
.NET framework. I really love .NET but I want its developers to face open source competition because that's the best assurance that they'll do their best in the future.
If everyone in the industry and in politics understood that you can only be either for open source or for software patents, it would all be a lot easier. Some say that software patents have not hurt open source so far but today we have the first incident that shows how software patents can put a hallmark Linux project in jeopardy.
What people need to understand is that the competitors and enemies of open source may very well accept today's stack of open source software, but they lay huge patent minefields in new areas of technology so they can arbitrary restrict the functionality of open source and keep its market share limited in the future. However, the best that can happen to all of us is an unfettered proliferation of open source.
I'm not just involved in open source. I'm also developing a closed-source computer game based on the
I think the question of how to best structure the EU, and how much power to give to the EUParl vs. the other institutions, is a little more complex.
Of course, the swpat story shows that it would generally be nice to have a European Parliament with much more power in place. We might say that now because last time the parliament was on our side and voted against swpats. If we had the Council and Commission on our side and the parliament against us, we might make some other points.
A powerful EUParl would be great but it would mean a "United States of Europe" type of state. The problem with a parliament is that there can only be a single method in place that determines how many representatives are elected by which member state. What some EU member states want, however, is for a more complex system where you need different types of majorities to make anything happen, and some are more favorable to the large member states and some are better for the small ones.
It's a strange mix-up of executive and legislative powers that the executive authorities of the member states have the key legislative power (through the EU Council and Commission) at the level of the EU. The swpat debate shows what this leads to: You have the national patent executives on a working group of the EU Council, and they push for exactly the patent legislation that they (and their friends at the European Patent Office) want. Yes, that's a structural shortcoming. However, we have to take into account that it would be a tough decision for some countries to cede more of their power to the EU.
Even though the problem is clear, it's hard to solve, and the best we can hope for is that the EUParl gradually gets more power. We also have a chicken-and-egg problem here: As long as voter turnout in EUParl elections is low, the EUParl doesn't have the standing it deserves. As long as it doesn't have that standing, voters don't turn out. Some EUParl politicians complain about the lack of media attention to the EUParl, and they're right, but it's the same type of chicken-and-egg problem as well.
I very much agree on your logic as to why program logic should not be patented, and why double protection (copyright plus patentability) is an insanity.
To us this is all very obvious. To politicians, however, it is equally obvious to do what the large corporations (which also donate most money to the political parties) tell them they want.
In my opinion, the EU is now the decisive battleground. In such countries as China and India, software is not patentable yet. If the EU adopts swpats, then it means that all of the industrialized First World has them (it seems almost certain that Australia will get swpats as part of a free trade agreement with the US, and Japan is already under a US-style swpat regime). So if the EU decision is pro-swpat as well, then China and India will probably just do what the wealthy part of the world has done.
If, however, we put an end to the expansion of the swpat system by democratic means in Europe, then some of the emerging markets will be more comfortable without swpats, and the US would be put at a competitive disadvantage and may at some point in time revisit the issue. If patent inflation continues, then even some of the large corporations will call for a swpat reform.
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!