(see also: homepage of Ciaran O'Riordan)









What am I doing here?


I'm working for Free Software Foundation Europe (FSFE), and I'm a founder and a committee member of Irish Free Software Organisation (IFSO).

FSFE and IFSO are distinct from ILUG, but we're linked by servicing the same community.

(page 1)


The Start of IFSO


In 2003, AFAIK, Ireland was the only EU member state that didn't have a body for organising software freedom work.

The software patents issue got hot, and no body in Ireland was doing enough.

The fsfe-ie list was set up in June 2003, and IFSO was founded in January 2004. (Jan 5th, the 20th anniversary of the GNU project.)

(page 2)


How I infiltrated FSFE


To be where the action was, I moved to Brussels in August 2004. I first supported myself doing some work as a painter and as a trainee barman.

In January 2005, I met with Georg Greve, who said that nobody wanted to work in Brussels.

"You're working for a trainee barman's wage?"

"We can probably pay you that!"

(page 3)


FSFE's work on software patents


The people behind FSFE have been working against software patents since 1999, but in 2000 it was decided that FSFE should not work publicly on it.

This was to prevent the issue being painted as a free software issue.

In 2004, FFII had built the necessary coalition against software patents. So it was time for FSFE to start working more publicly on it.

(page 4)


Why's what's being done important?


We're working to block software patents at the EU legislative level.

If we fail, software patents will exist and we will have to leverage the market instead.

Is this a good fallback plan?

What's the best suggestion that has arisen...

(page 5)


Patent pools


If our opponents would throw their patents into a pool and promise that they would not be used against free software projects - that would be great.

But it won't be our opponents, it will be our friends, and we don't need protection against our friends.

How about using the pool for counter-threatening or counter-suing?

Our patent owning friends have already cross-licensed with the other large software companies.

And pure litigation companies don't produce any software that we could threaten or sue them over.

(page 6)


Summary of Market level defense


Renaming "friends" as "pool contributors" doesn't change anything.

In 19 years of software patents in the USA, the market has not come up with a solution that saves free software.

So blocking software patents at the legislative level is what we must succeed at.

(page 7)


The Directive compressed to 2 minutes


There were 3 main events in the legislative process: the three votes.

(page 8)


September 2003


The European Parliament's first vote.

We won this spectacularly. The Members of the European Parliament (MEPs) voted by clear majorities to amend the Directive to our liking.

MEPs are the ones voted into their role by the national electorate. (Our last national MEP vote was in June 2004.)

(page 9)


May 2004


The Council of the European Union ("the Council"), discarded all our great amendments.

This was during the Irish presidency. Mary Harney was both our representative and the chair of this meeting.

Rather than elected to their EU positions by the citizens of the EU, they are appointed by the national governments.

This could be why we found them to be much less open to dialogue with us.

(page 10)


July 2005


Nobody knew what way round #3 was going to go. We were winning, but then there was a massive push from the other side.

They worked the political system more effectively than we did.

In the end, to everyone's surprise, the Directive was rejected.

(page 11)


Why did both sides go for rejection


(NOTE: FSFE was one of the few bodies that didn't push for rejection.)

The other side saw that we could win, so they went for rejection.

We saw that even if we won in the Parliament, our amendments could simply be discarded again by the Council.

So rejecting the Directive was the only reliable power the Parliament had.

(page 12)


Rejections are rare but


Rejections are very rare, but they're not actually difficult. There is a certain set of parties that vote No to everything in the EU.

Some, such as those that want out of the EU, even have it as their party mandate.

So if 20% is voting No, all you need is to convince 30 of the remaining 80%.

(page 13)


Aftermath


Things could have gone either way, but that doesn't equate to things being 50/50.

We had 21 amendments, and to be adopted, each needed a majority of MEPs. Not just the MEPs present, but all MEPs. So any MEP that didn't turn up, or that abstained, was effectively a No vote.

Usually, 75% of the MEPs vote. So we needed 65% of those actually present to vote Yes.

The other side must have judged that it was highly likely we'd get that 65%.

(page 14)


The Directive's gone but the issue lives


The Directive was supposed to settle the debate over whether software innovations are to be patentable - but it didn't.

So the debate continues and has to find new forums and hosts.

(page 15)


It wasn't about software patents anyway


The people pushing for software patents were large, established, software companies.

The goal is to make it costly and risky to participate in the development or distribution of software.

This benefits those with lots of money and lots of lawyers.

Software patents are only one way to achieve what our opponents want.

It's a trend of limiting progress to where it benefits current business - it goes back to the dawn of the proprietary software era.

(page 16)


Where does this leave us?


We've learned that we can win. Many thought the system would be too stacked against us, but we won.

(not a complete win, but we achieved more than our opponents.)

A lot of people on our side, 20 or 30 or more, now have lobbying experience in the Parliament.

There's a handful of people that have been, or are, doing it full time.

We've learned how the other side operates - trick wordings, confusion, scare tatics.

(page 17)


Regarding the EU institutions


We've made contact with many politicians.

We've cracked how the legislative process works in practice.

We've learned who has what power at each stage, and what they have the ability to do.

This allows us to make specific requests of politicians, rather than vague requests that get vague rejections.

(page 18)


There's another Directive called the Community Patent


It doesn't talk about what subject matter is or isn't patentable, but it could, say, set up an EU level patent review board.

Right now, holders of software patents aren't attacking European software developers because they'll have to go before a court and their patent will be thrown out.

What if such cases were instead heard by a patent review panel? What if the patent review panel was staffed with European Patent Office appointees?

The result changes from "that's an invalid patent", to "that patent that we approved is great!"

(page 19)


IPRED2


This is a new legislative proposal on "enforcing IP rights".

Like the Community Patent, this doesn't change the definition of patentable subject matter, but it has another angle.

It criminalises patent infringement, and requires heavy penalties including jail time, closure of business, large fines, etc.

There are 50,000 software patents. Most would get thrown out in court, probably >95% of litigation based on them would fail. But when the threat is a criminal record, will people and businesses take that chance?

(page 20)


When do we go on the offensive?


It sounds like we're always defending against things, but in the software patents battle, we stood to gain significantly.

In other legislation, like the European Copyright Directive of 2003, and the current IPRED2, we are on the defensive.

But on IPRED2, lets see if we can send a signal. For example, that "intellectual property" is not a coherent category of things that can be legislated on.

Teresa Hackett is going to talk later about an Access 2 Knowledge treaty, which I hope will about us going on an offensive.

(page 21)


What's next?


National legislation?

In the 21 great amendments that we prepared for July 2005, we have the text for excluding software from patentability, so maybe we can get it into national legislation.

Is there the energy for this? Not sure.

Is there a country where we can bet on this succeeding? Not sure.

(page 22)


What else's on the schedule?


There's also the matter of version 3 of the GPL.

The legal and technical environment has been changing over the last 14 years, so the GPL needs some updating.

There will be a 12 month consultation period in 2006.

It won't be radically changed, but it has to be done carefully because the freedoms of hundreds of millions of software users - plus billion euro industries - rest on it.

(page 23)


The "secret" work of FSFE


FSFE does do a lot of work that can't be published. It arbitrates between companies that are having disputes about free software etc.

But what I really want to mention is FSFE's work that isn't secret, but goes completely unnoticed.

(page 24)


The public but unseen work of FSFE


Many here will have heard of the TRIPS agreement during the software patents battle. TRIPS is a treaty covering patents, copyrights, and related law enforcement.

This is the source of - or the excuse of - things like the software patents Directive. "To fulfil our international obligations..." What obligations? "Oh, it's there in TRIPS."

FSFE is active in the World Summit of the Information Society, and the Working Group on Internet Governance, and many UN and WIPO groups.

These are the source of the bad legislation, but slashdot doesn't follow the UN working groups too closely.

(page 25)


But


All this takes funding.

To continue and to expand it's work, FSFE has launched "The Fellowship of FSFE".

This is a membership program anyone can join by paying 120 euro per year. Students can pay as low as 60 euro at their discretion.

You get a blog, and an @fsfe.org email address, and you get a CryptoCard which is pretty cool.

But I think those things are secondary.

You contribute to the support of necessary political work.

(page 26)


How to help


If you want to participate in the political work, working with FSFE's national associate organisations, such as IFSO is the best way.

On IFSO's website there's a link to the mailing list and the wiki, and IFSO also has a paying membership program which is 20 euro per year.

http://www.ifso.ie


And to join the Fellowship of FSFE, go to:

http://fsfe.org

Thanks.
(page 27)