(Homepage: Ciaran O'Riordan)

Ciaran O'Riordan: End Software Patents

(There is now a transcript and ogg audio online)

Notes from a talk given at FSF's LibrePlanet event in Boston, March 21st 2009. This talk describes the work of the recently launched Phase II of EndSoftwarePatents.

1. Who am I (transcript)

• I'm not a lawyer or a legal expert.
• I'm a programmer, and in recent years a campaigner.
• So I'm not a general spokesperson on software patents. When people ask me about what's happening with the Bilski case or the Tom Tom case, I sometimes know the answer, but not always and knowing the status of everything isn't my goal.
• What I can contribute is my experience from a few years of anti-software-patent campaigning in the EU.

2. We're actually winning (transcript)

• This is my first positive talk about software patents. I used to be the boogey man at conferences issuing warnings of Armageddon while everyone else gave happy presentations about the features they've added to their software in the last year. "You can leave politics alone, but politics won't leave you alone"
• We're doing well. If you looking for a project to join just before victory, this is it!
  • EU: We defeated the attempt to introduce software patents in the EU. We didn't manage to turn it into a positive change, but we more than equalled their lobby, and we proved for the first time that we could effectively participate in the legislative procedure.
  • Bilski: Here we narrowed the scope for granting software patents. The USPTO's board of review is already invalidating patents based on the Bilski ruling. This is important not just for the USA but for the global movement because most software patent litigation takes place in the USA. Tom Tom is a Dutch company, but it's with the courts of the USA that Microsoft filed suit. Improvements in the USA also change what it means when other countries are pressured to harmonise with the USA.
  • India: In India, there was a proposal to introduce software patents, and after only about three weeks of mad lobbying, the Indian parliament rejected the proposal. That makes us Europeans feel very inefficient. I don't know the whole story of why their victory was so quick, but one goal of EndSoftwarePatents is to look into that and document it.
• Those are the three most decisive battles, and in each of them we did better than pro-swpat lobbyists. So we're doing well.

3. Software patents and free software (transcript)

• Software patents are not a free software problem, and ESP is not a free software campaign.
• Free software has some difficulties regarding software patents. The main example is that we can't avail of the usual method for licensing patents because that would require a per-copy fee, which violates our principals.
• Free software also has advantages:
  • With GPL, we can't be milked
  • With distributed development, there're fewer pots of gold
  • When something in our software has patent problems, anyone can remove just that part and continue using the majority. It's never necessary to take the whole product off the market.
• But the topics of free software and software patents are often discussed together because free software supporters are natural allies of campaigners against software patents. Software patents interfere with the general freedom to participate in the development and distribution of software - free or proprietary. Free software supporters are just a bit quicker to understand the relation between freedom and software.
• Our other allies should be SMEs and non-software companies. Unfortunately, SMEs in the USA haven't gotten active yet. Non-software companies haven't either, but hopefully Ben Klemens' study showing that software patent litigation is costing $11.2 billion will help show them tha it's in their interest to get involved.
• So we're still leaning on the free software community to bootstrap the anti-swpat campaign.

4. Why legal? (transcript)

• We're looking to change legislation about what is patentable, and to get court rulings about software not being patentable.
• We're focusing on these legal battles because all the other attempts at market solutions have all be very ineffective.
• They usually have a small positive effect, and it's good that others are working on them, but they're not going to achieve our goal. Examples:
  • Patent pools: These have limited effectiveness because the contributors are our friends, so we weren't worried about them anyway, and most companies with reasonable patent portfolios have agreements not to assert them against each other already, so these patents can't be used for counter-litigation.
  • Re-examinations: This is time consuming and unreliable. We can invalidate the three software patents that Microsoft is using against Tom Tom, but Microsoft has 10,000 others to choose from.
  • Our licences: We can put clauses into our free software licences, like was a focus of GPLv3, but this only gets us limited protection, and only from the companies that distribute our software.
  • Publication: Only works against some patents, can backfire.
• ...

5. Why only focus on software (transcript)

• We don't want to add new enemies.
• Our policy for software patents (abolition) isn't necessarily the solution that good people in other fields want for their field.
• Stick to what we know.

6. What ESP is doing (transcript)

• Wiki (it's now live: en.swpat.org - the software patents wiki)
• Blog
• ...

7. How is anything globally useful (transcript)

• Legal wordings, good suggestions for starting points in other countries.
• Arguments and evidence - sometimes usable in other areas, or at least it's an example of what to look for or how to make the argument.
• Some parts of the environment are global, like the TRIPS agreement.
• Examples: ABS, Mp3

8. How lobbying is done (transcript)

• There's no one perfect argument.
• You need a list, and pick the right one on the fly.
• ...

9. Arguments (transcript)

(I had to mostly skip this for lack of time.)

• Venture capitalists are against - success makes their companies a target for litigation.
• Standards: if a patent is needed to follow a standard, communication is held to ransom.
• Free software - this was hard to explain eight years ago, but today free software is big.
• Innovation - many studies show that patents reduce innovation.
• Bad for non-software companies, as Ben Klemens documented.
• Interferes with the free market - discriminates between development models
• Monopolies - the German Monopoly Commission warned against swpats.
• Bureaucracy: every patent is bureaucracy. In filing, in searching, and in litigation.
• The economy: who's paying for all this? The taxpayers and the companies in the country are paying for the patent office and are paying the costs and damages of patent litigation law suits.

10. Conclusion (transcript)

• The theme of ESP's documentation efforts is to enable you to work on specific campaigns. I'll do some too, but I can't work on them all.
• Donations will be needed. FSF is handling donations, but ESP's account is separate. The financial style of ESP is low-cost.
• Join the alerts list.
• Look out for the wiki in the next two weeks.