[Fsfe-ie] Dutch revoking their swpat vote
jm at jmason.org
Wed Jun 23 02:54:09 CEST 2004
EU Patents - It Ain't Over 'Til It's Over
Tuesday, June 22 2004 @ 06:19 AM EDT
If you thought the EU patent story was a done deal, I suggest you read
this account by Arend Lammertink on his efforts to turn things
around in the Netherlands, which may result in the Dutch Parliament
revoking its vote approving the patent directive. Lammertink holds a
Masters degree in Electrical Engineering from the University of Twente
and works as a Software Engineer for dGB Earth Sciences that
specializes in quantitative seismic interpretation software and
services. OpendTect, one of the company's products, is "the world's
first open source seismic interpretation system". He writes:
"Seemed as good as lost. But it ain't over yet. We've played our
cards (and luck!) quite nicely here in The Netherlands (if I may
say so myself) and at this moment the Dutch Parliament is actually
considering to revoke the vote Minister Brinkhorst gave at the
Council. This has never happened before in the history of the
European Union!. . . .
"The Dutch parliament will make a final decision about the position
the Minister will take in September. A debate about this issue will
take place at Thursday, the 24th of June, 19:45-20:45 CET. Also see
the official agenda of the Commission for Economic Affairs. They
may also decide to require the European Presidency to open a new
voting procedure, which would completely reopen the case for all
member states . . .
"Remember, all European countries can legally revoke their vote if
they want to and they have the power to require the European
Presidency to open a new voting procedure, which would completely
reopen the case for all member states."
A preliminary report by several Spanish experts on European procedural
law, under the coordination of Dr. Luis Fajardo Lopez, confirms
that the votes can be changed:
"There are legal ways to change the position adopted on May the
18th meeting. In other words, at this procedural moment there is no
legal obstacles to reversing the political agreement on common
positions, neither to adopt a new probably more balanced political
The article is full of references, including to this 1998 article
that claims in the past the BSA sued companies and agencies that
couldn't prove ownership of their software, Microsoft's and that of
others, and then settled on terms that the company from that day
forward use only Microsoft software, a charge Microsoft denied.
Novell, however, said the sweetheart deals that left Novell out in the
cold did happen that way:
"In 1995 Antel, the national telephone company of Uruguay, was
caught pirating $100,000 worth of unlicensed software programs from
Microsoft, Novell, and Symantec. Antel was nabbed by the Business
Software Alliance, a trade association that partly acts as a global
bounty hunter for the software industry. The BSA's lawyers in
Uruguay quickly filed suit.
"But instead of waiting for a ruling on the case, the BSA abruptly
dropped the suit in the fall of 1997. The BSA receives funding from
most of the top software companies but appears to be most heavily
funded by Microsoft. And, according to Antel's information
technology manager, Ricardo Tascenho, the company settled the
matter by signing a 'special agreement' with Microsoft to replace
all of its software with Microsoft products. . . .
"Felipe Yungman, Novell's manager of security for Argentina, says
he and another staffer at Novell discovered, while pursuing their
own investigation for the company, that the BSA was setting up
sweetheart deals for Microsoft. 'Companies or government offices
had to, as a condition [that the BSA] forgive them of piracy,
replace Novell products with Microsoft products,' he says."
In an interview with Microsoft's Steve Ballmer, he first praises
his company for all the R & D they do, and then indicates they intend
to be paid back for it by using their patents:
"Since Microsoft went public in 1986, we have invested a total of
$36 billion in R&D, creating a wide range of integrated
technologies that have helped customers and developers do more.
Over the next 6 years alone, we will invest another $40 billion in
innovation, continuing to make us a top R&D spender in any
industry. Specifically, our focus is on integrated innovation,
making our products and services work together and understanding
how customers use technology and information to improve their
lives. No other company in our industry is focused on this kind of
innovation. We also are filing for 2,000 patents a year, a number
we expect to increase in the years ahead."
What does a company need 2,000 patents a year for? Maybe to supplement
the BSA's alleged activities? Maybe they realize their days are
numbered as a software vendor, that FOSS is the future. If they can't
muscle us into using their software, perhaps they can force us to pay
a toll for using whatever we prefer. Wait a sec. Isn't that SCO's
impossible dream? Or maybe they'll just use patents to sue FOSS out of
the market as Plan B? No doubt they will daintily use others, like
patent pool companies that have little to lose, to do their fighting
for them. Say, is that legal for a monopoly to do? To use their power
and assets to gang up on the competition and make it impossible to
The EU patent decision will play a role in what happens to free and
open source software's ability to compete. It's very odd to me that
governments, many of which have announced that they intend to switch
to GNU/Linux, don't connect the dots and comprehend that there is a
connection between having that choice and patent decisions they make.
It does seem that there was a measure of confusion in the minds of
those voting, and that at least some thought they were voting to
curtail software patents. Perhaps they should read this
article,"Why Europe Should Be Wary of Software Patents," by Brian
Kahin, who is a visiting professor in the School of Information, Ford
School of Public Policy, and Department of Communication Studies, at
the University of Michigan. He was formerly Senior Policy Analyst at
the White House Office of Science and Technology Policy where he was
responsible for the intellectual property and digital economy issues:
"Large companies amass portfolios for strategic purposes:
cross-licensing, blocking, deterrence, and revenue generation. . .
.While patents facilitate niche entry by small companies, patent
portfolios disadvantage small companies seeking to enter markets
for complex products. They have little to trade, but they need a
lot of licences. But how many, and from whom? As Robert Barr of
Cisco testified at a FTC roundtable: 'There are too many patents to
be able to even locate which ones are problematic. I used to say
only IBM does clearance ... but IBM tells me even they don't do
clearance searches anymore.' . . .
"As last month's Managing Intellectual Property interview with
Marshall Phelps, the architect of IBM's licensing programme, shows,
Microsoft wants to start earning returns from its massive
portfolio. After all, why shouldn't users pay innovators? Why
shouldn't today's developers pay tribute to the R&D investments of
the past 20 years? Why should European developers, small, medium,
open source, or otherwise, get a free ride on Microsoft and IBM?
"This might be a reasonable argument if developers actually learned
anything from these massive portfolios, but from most accounts
nobody reads software patents. Programmers don't use reference
manuals, patents are not written to convey knowledge beyond the
bare minimum needed to fulfil legal requirements, and lawyers
advise against reading patents because of the risk of wilful
infringement. . . .
"According to an AIPLA economic report, when the amount in a
controversy is under $1 million the average cost per side is half a
million (2003), not including staff time and opportunity costs.
Licence fees of $10,000 look pretty good compared to the costs of
"On the other hand, licence fees of $10,000 or even $100 kill the
open source model of software distribution."
So, that's the game. Remember all the criticism of Linus which SCO
heaped on him for saying he didn't do patent searches? Now you know
the rest of the story. Nobody does them.
Many of you may be planning to attend LinuxTag next week. If so,
perhaps you may be interested in the following information from Jan
Wildeboer, which he asked me to relay to you:
Next week the LinuxTag will take place, Europe's biggest Linux
event. Software patents will be a major theme, of course, now that
we may have to face complete patentability
Many people will wear the following T-Shirt:
FFII (http://www.ffii.org), mySQL, FSF-Europe etc. will hold a
demonstration against software patents in Europe at Thursday, 24.
June starting at 6:00 pm.
We will have 10 "programmers in chains" - they will wear prisoners
costumes with patent numbers on them. This is meant to ... inform
of what is about to happen.
More information here: http://kwiki.ffii.org/DemoKarlsruhe04En
Banners here: http://dhcp42.de/ltag/index2.html
Media contact: jw at domainfactory.de
You may also find this FFII press release of interest, because it
also indicates that the deal isn't yet firm, and that there are
efforts to reinstate the amendments that were dropped in May:
"It is not yet certain that the Irish Presidency has secured a real
majority. To re-instate amendments in the European parliament
requires absolute majorities. This is achievable: many of the
amendments did achieve this level of support in the first reading.
But some of the votes are likely to be very close."
The press release says that it was Germany that did not stand firm, by
the way, and was instrumental in getting the draft compromise passed.
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