[DMCA-Activists] RMS/Newsforge on *Astounding Victory* in Software Patent Fight

[Seth Johnson]

> http://www.newsforge.com/print.pl?sid=03/10/21/1222214

On September 24 I received dreadful news: that the European Parliament 
had voted in favor of software patents. It had approved the directive 
on "computer-implemented inventions." The European Commission 
directorate that proposed the Directive said, and continues to say, 
that it would not authorize software patents -- but the text they 
proposed had many loopholes, any of which would have allowed patents 
that restrict using ideas in software for your PC. Practically 
speaking, that means software patents.

On September 25 I heard the real news, from Hartmut Pilch of FFII, who 
has studied the directive and its loopholes more carefully than anyone 
else. He reported that the amendments adopted by the parliament had 
closed all the loopholes. The vote was actually a victory for the free 
software community. We lobbied against the megacorporations in a 
national (or you could say multinational) legislature, and we won.

The initial erroneous reports were based on the mistaken understanding 
that only complete rejection of the directive would prevent software 
patents. On the contrary, a directive amended to clearly reject 
software patents, as the parliament has done, is a step forward. The 
European Patent Office (EPO) has issued ten of thousands of software 
patents, in defiance of the treaty under which it operates. The 
original directive would have made them all valid; the amended 
directive will affirm they are invalid.

In the weeks before the vote, the Socialist Party had begun to 
recognize the directive's problems, and proposed compromise amendments 
that would have closed the best known loophole, the one that allowed 
the patent's "inventive step" to be a software idea. (It used the 
vague criterion of "technical character," which was supposed to 
require a physical invention, but those two words could be stretched 
to include almost anything.) But it's insufficient to close one 
loophole when several others alongside it remain gaping open. For 
instance, even interpreting "technical character" in the strict sense 
of a physical system, it was sufficient for the inventive step to 
involve use of a physical object, such as a computer or a mouse. Even 
the infamous one-click shopping patent could have got through, 
presented as a new way of using the undeniably physical mouse.

The day before the vote, I participated in a press conference held by 
the Green Party, where we explained that further amendments were 
needed to avoid authorizing software patents. Hartmut Pilch had 
analyzed all the amendments and reported on how they would affect 
software patents, preparing a handout that explained clearly which 
were necessary and which were harmful. We thought about how to make 
last-ditch arguments to persuade members of parliament to vote for the 
necessary ones.

Whether or not those arguments were effective, the outcome was 
favorable. The parliament went much further than the Socialists' 
compromise; it adopted amendments that close all the loopholes, and 
made the directive a positive one. Threats from EU officials that even 
the compromise amendments would be unacceptable may have strengthened 
the parliament's resolve to show it cannot be intimidated.

As a leader of the League for Programming Freedom, I began warning 
Europeans about the danger of US-style software patents with a series 
of speeches in the early '90s. It took a few more years before the 
megacorporations, the US government, and the EPO began to lobby for 
legitimizing software patents there. The European free software 
community took the lead in opposing them.

But we did not present this as a campaign for the sake of free 
software alone. Software patents are dangerous for all software 
developers, outside of the megacorporations, and organized opposition 
to software patents has included developers of free and non-free 
software ever since the League for Programming Freedom began it. 
European proprietary software companies have participated strongly in 
this campaign. Officials of the EU and WIPO have reportedly suggested 
making an exception to patents for free software alone, but we believe 
we have a better chance of winning if we campaign for something that 
would benefit nearly all programmers: to reject software patents 
entirely.

As the European Parliament began to consider the issue, opposition 
spread beyond software developers. Librarians, consumer organizations, 
opponents of privatization in general, the Green Party, and activists 
campaigning on other
issues of patent law (such as to allow poor countries to make and 
trade life-saving drugs) also joined our side. Economists did research 
showing both theoretically and empirically that software patents do 
not promote progress and can hamper it. All contributed to this 
victory.

We have won an important battle, but the war is not over. The 
September 24 vote was not the final decision; the directive as now 
amended can be changed by the Council of Ministers, which consists of 
one representative from each EU country. The council meets on November 
10. Europeans are now working to convince their governments to support 
the amendments that the parliament has made. Removing even one 
amendment could open a loophole big enough to admit truckloads of 
software patents. Our victory in parliament shows we can win a battle, 
but if we relax now, we can still lose in the final outcome.

If you are a citizen of Europe, please look at swpat.ffii.org and 
softwarepatents.co.uk to see how you can aid the campaign to keep the 
world safe from software patents.

Copyright 2003 Richard Stallman
Verbatim copying and distribution of this entire article are permitted 
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medium provided this notice is preserved.

Links
  ____________________________________________________________
 1. "the real news"
> 
http://www.idg.com.sg/idgwww.nsf/unidlookup/955189AAA890112C48256DB1001
4D9C7?
OpenDocument
2. "League for Programming Freedom" - http://lpf.ai.mit.edu/
3. "swpat.ffii.org" - http://swpat.ffii.org/
4. "softwarepatents.co.uk" - http://softwarepatents.co.uk/