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Software Patents and the Free Software Movement

First off, thanks to the BCS OSSG, thanks to Peter Murray and Mark Elkins for organising this, and to Conrad Taylor for doing the video.

I've been working on free software topics and specifically against software patents for a number of years now. It's hard to decided when exactly I started.

August 2004, I moved to Brussels working on this as a volunteer and I was working on it there for a number of months when FSF Europe hired me as a full-time lobbyist in Brussels. I haven't found a better word than "lobbyist" to describe the work I do.

Software patents is a really important topic for the free software movement. It was the first test of software rights campaigners in Europe. Europeans mostly had experience reading slashdot and reading about laws being implemented in the USA, the DMCA and laws like this which we found pretty funny that people were accepting. Then the software patents directive appeared pretty quickly, pretty suddenly in Europe. The lobby groups had to get organised pretty quickly.

People weren't really used to lobbying. The free software movement mostly relied on writing a lot of software, so very quickly people shaved their beards and put on shiny shoes and walked around the European Parliament with brief cases. This was a transformation, but it wasn't completely different, there are some similarities. The sleeping cycles are still pretty weird, there were a few times when we slept on the floor in the offices of the European Parliament or left there after midnight.

The EU legislative process: people don't pay attention to it very much, I think about 20% of people vote for their representatives. It's not something people participate in very actively.

Patent law is a pretty obscure thing and we were talking about a corner of patent law. So, the people who were proposing this must have been thinking "Great, an EU directive on patents, who's going to care about this?" So they must have been pretty surprised. We had rallies where we had a few thousand people marching around Brussels for an hour with banners and t-shirts.

We had people outside the parliament but we also had people inside the parliament. Our lobby groups were well organised there, meeting the MEPs. The issue was front page news in some countries. I don't know if it was in the UK but I remember in French newspapers, the major newspapers there. And the MEPs all knew about it, so this was a very obscure topic that became very prominent.

Most of the talks I gave about software patents were last year or the year before, so is it a bit late now talking about software patents? It's not in the news so much this year. The directive itself is finished, but the topic is going to keep going on. It's going to keep going on in its present form, or there could be a new directive which I'll talk about later. There could be a different route. They might try to take a different route because we were so successful at blocking this first attempt.

They've decided to single out legislation because there is no point competing with free software technology-wise. In the eighties we had very little free software, using free software was a difficult thing to do. Using only free software was sometimes impossible. In the nineties, free software became much more usable, and now we find people who don't even know what free software is and they're using firefox and open office, and they will be using GNU/Linux, maybe in their workplace, or maybe they already are. The technology is always increasing with free software, but our weakness is the fact that to develop software, we just develop software, we don't think about how can we lock people out of improving our software, these aren't things that we think about, so this was a weak point, the fact that we weren't involved in the legislative process, so there're going to be more attacks on us from this angle.


Software patents, it was a means to an end. It was a means to an end, patents aren't so important. People like to talk about innovation and the Lisbon Agenda. These are buzzwords in the European Parliament, but they weren't about these things. The problem was that the really big software firms, they wish that software development wasn't so easy. The problem is that people are able and willing to write software for themselves. The existence of all this free software shows that people will write software when they need a task done.


In the large construction industry and the pharmaceutical industry, they don't have this problem. People aren't going to develop their own pharmaceuticals, they're not going to build their own offices.

There are natural barriers to entry to these markets, there is a difficulty that people overcome without becoming organised into a company. So the big software companies had to look at software development and they had to decided how they can make software development rely on something that they have that most people don't have, and that's money and lawyers. This is the point, to make software development depend on having lots of money and lawyers, so there will be other attempts. Software patents were just a particularly sweet way of achieving this.

There are two main affects that software patents have, I think all the other problems flow from these things.

The first is that they have a general affect: they make software development in general risky and costly.

The second affect they have is that they specifically impede the development of useful software. They do this because of the need for compatibility in software development. If you write a word processor and it doesn't look like a word processor, then nobody is going to use it, or only a very smal fringe is going to use it, but nobody wants to write software for a small group of people, you want to make it as useful as possible so it has to look compatible.

It also has to read and write the file formats that people are using, these are the defacto standards. If your word processor cannot process the words people are sending you, it's not a word processor.


If a standard becomes patented, and a company can exclude people from this standard, then they can exclude people from writing useful word processors, so it's particularly effective at inhibiting software development in that way.

The other good thing about software patents, for people who want to inhibit development in general is that they're only enforced when the patent holder wants them to be enforced, so the affect that is seen by the mass media and by the politicians and society can be limited. They can enforce them at an acceptable level, or only enough so that they don't go on the radar.


A lot of the MEPs, we discovered, their websites were infringing software patents which some of them were going to vote in favour of. But, MEPs are never going to be litigated against for software patents because the companies don't want the MEPs to know how easy it is to infringe on a software patent, so either they'll only enforce the patent when your software is so good that it has an affect on the market - when it starts eating into what they think is their share of the market - or when you get enough cash. When you're a small company and you get a venture captical injection, you also get a patent litigation letter.


Free software itself gets rarely targeted, and sometimes the people pushing for software patents said "What are you complaining about, free software doesn't get targeted with software patents". This is true to an extent, but the extent to which people are litigated against is probably greatly underestimated because in general a court case will cost hundreds of thousands of euros, or sterling, it will be prohibitive to most people developing software for themselves or in a small or medium company, so most cases get settled out of court. This is done privately and may involve a non-disclosure agreement, so they'll be told "You give us this amount of money, and don't tell anyone we did this to you".


As well as software patents, there were other directives. The first one that came out after the software patents directive was the second intellectual property rights enforcement directive.

"Intellectual property" is a red light, a warning sign, that this law is going to do something stupid. It criminalises almost all copyright, patent, and trademark infringements.

If you propose to criminalise all these acts, it will never get passed, so they limited it. They said only "commercial scale" "intentional" infringements will be criminalised. But what is intentional? and what is commercial scale?

Intentional could be all things you do while you're awake, and commercial scale could be anything that might affect my potential profits.


So we had a lot of people saying that this was a bad idea because company CEO's are going to get put in prison, but I don't think that's realistic. It's something that the directive made possible, but I don't think it would actually happen, for press reasons.

I think the main reason for criminalising copyright and patent infringements is that it scares people away, it increases the need for lawyers when you're doing something. It makes the grey areas of copyright and the grey areas of patents - are they enforceable or not? probably not, but are they? - it makes these too scary. You could risk having your business closed down, you could risk a very large fine. The idea is to make people treat the grey areas as prohibited. They can't get the legislation to make these prohibited, so they make the grey areas scary enough so that they think that the law is is larger than it is.

There's also a copyright directive which is the legal basis of what Gareth mentioned of Trusted Computing / Treacherous Computing. It was called a copyright directive, it was actually a technology control directive. It says that if you circumvent encryption to access a copyrighted work, then you are breaking copyright because you are not allowed to circumvent "effective protection mechanisms". So a company can say what the software is allowed to do, or what software is allowed to access their data, and the encryption can enforce this. The encryption doesn't have to be difficult to break, but if you break the encryption, then you've broken this law. So companies are setting private law for the software they write and their private law is now being enforced in the software, so things like fair use of media, other rights that people have, you still technically have them but making use of them becomes illegal.

So, when we're working on the software patents directive, we learned a lot of things because we started from nothing, so the first thing was that the free software community had already seen the software patent problem happen over in the USA, so when it became an issue over here, there was a decision: what way do we campaign against this.

One of the decisions we made early on was not to make it a free software issue. Don't launch a massive free software campaign against software patents. The reason is that the free software community wasn't big enough back then, it probably still isn't big enough now, to win these battles on its own. Software patents don't just harm free software, they harm proprietary software developers as well. So we needed to get those people on board as well, to get as many people against software patents as possible.

Consumer groups, small and medium enterprises, they became involved, and later the free software groups became active in a more public way. This strategy was tried in the USA with the League for Programming Freedom, the LPF, but it didn't work. They've got software patents over there. There's a group called the Foundation for a Free Information Infrastructure, the FFII. They're an associate organisation of FSFE, so we work together on some issues like these. So FSFE supported FFII's work and we work with them on this issue.

Sometimes we had to not worry about who gets credit for this work, it's more important that the work gets done. One thing we had to worry about was political parties getting credit for this. Some parties agree with our position and so they wanted to hold big conferences and they wanted to hold joint conference, but at the start we made the decision not to do this. If we want to do a big conference, we do it with a politician from two opposing parties, because we didn't want the issue to get attached to any one party and then have it turn into a party competition. So instead of working with parties, we looked for individual politicians and tried to find somebody who understood the issue and who could champion the cause in their party, and we could do this in each of the parties.


One of the important things is that we learned that we can actually win these battles. The free software mailing lists, the GNU/Linux mailing lists, a lot of mailing lists were discussing these issues and every now and again you get the grand market theorist who will inform you either "don't worry, the market will sort it out" or "There's nothing we can do, the market will give us the answer in the end". And we found out that these are wrong. We found out that when we did participate in the process, it was fairly easy to get appointments to talk to the MEPs. Understanding the legislation was difficult but it was possible, and we could definitely have an effect.


When we were talking to the MEPs, we had to find very simple ways of explaining these things.

One problem we had was, for example, the automotive industry came up with this example about ABS, the anti-lock breaking system, and they said:

"look, cars have loads of computers in them, and they have breaks and they have sensors. What if I develop a new way of stopping a car and it doesn't require new sensors and it doesn't require new computers and it only requires a change in the software."

They're saying that this is a software patent and the automotive industry needs software patents. This is simple enough. You can draw it on a diagram with three triangles and you can explain this to an MEP. Then to counter that, we had the harder job of explaining the details.


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