[Fsfe-ie] Dutch revoking their swpat vote

Justin Mason 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
   [37]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, [38]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 [39]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 [40]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,[41]"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
     contesting patents.

     "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 ([44]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: [45]http://kwiki.ffii.org/DemoKarlsruhe04En

     Banners here: [46]http://dhcp42.de/ltag/index2.html

     Media contact: jw at domainfactory.de

   You may also find this [47]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.



   Visible links
  37. http://www.osnews.com/story.php?news_id=7442&page=1
  38. http://www.vrijschrift.nl/Members/arend/Fajardo-Lopez-Law-Office_Preliminary-Report_on_17-18thMay_EU-Council.pdf
  39. http://www.motherjones.com/news/feature/1998/01/burstein.html
  40. http://www.activewin.com/interviews/microsoft/36.shtml
  41. http://www.si.umich.edu/~kahin/mip.html
  42. http://swpat.ffii.org/
  43. http://dhcp42.de/ltag/index.html
  44. http://www.ffii.org/
  45. http://kwiki.ffii.org/DemoKarlsruhe04En
  46. http://dhcp42.de/ltag/index2.html
  47. http://swpat.ffii.org/log/04/cons0518/index.en.html

More information about the FSFE-IE mailing list