Author: Jay Lyman
“No Lobbyists As Such — The War over Software Patents in the European Union” is published by Mueller’s own company, SWM Software Marketing GmbH. Mueller expects the book will be distributed with help from traditional publishers when it is released in May. He’s accepting pre-orders at the Web site for the book.
The title, and specifically “as such,” refers to the wording of a European legislative provision that excludes software from patentability, but only “as such.” This provision was viewed as a loophole by patent proponents who thought they could blanket Europe with the legality of software patents, and was largely the basis of a directive that, had it passed, would have meant computer programs could be patented, even though European law forbids software patents.
In 370 pages, Mueller takes readers along to the rallies, pow-wows, and legislative meetings where one is sometimes uncertain of the real outcome until hours or days after a vote, and bureaucratic sleight of hand mixes with industry power and money. Mueller also tackles government agencies and attorneys who oversee patents to promote their own industry, which he describes as an “unholy alliance.”
Mueller begins the book by explaining his happenstance entry into the European patent fight, which two years ago was not getting much attention. At that time he was a programmer working on his own computer game, and he also served as an adviser to MySQL.
Mueller describes how he used his business experience to appeal to key figures in the debate about the economic and industry impacts of software patents, citing “stories from the United States” as cause for concern that the same patent practices could invade Europe, stifling smaller competitors and innovation in the process.
While delving into just how bitter the battle was, Mueller describes a sort of open source lobbying that emerged in the course of the European patent struggle. While rounding up corporate and other support for his successful NoSoftwarePatents site and campaign, Mueller relied on the Foundation for a Free Information Infrastructure (FFII) and other mailing lists, which he describes as “my entry into the FFII’s open collaboration system.” He describes the mailing lists, used along with IRC and wikis, as “the arteries of a virtual network.”
Some color is added when we hear of meetings with lobbyists wearing not suits and ties, but attire more appropriate for software developers. “He was wearing blue jeans and a T-shirt. Wouldn’t an alderman be dressed more formally? Not when he’s a Green. Not at an open source gathering,” he writes.
Mueller ties his work 10 years earlier promoting and translating the game “Warcraft II: Tides of Darkness” with his more recent lobbying experience. “I believed that I had already passed the test for being able to handle a mission from hell,” he writes. “I was ready to repeat the Warcraft II story in the political fight against software patents. However, I also knew that there was no guarantee that I could match the success I’d had with Warcraft II.”
Instead of using strategy against digital game characters, he enlisted corporate support from Red Hat, 1&1 Internet, MySQL, and others to take on the lobbying of Microsoft, SAP, Siemens, the Business Software Alliance, and the patent bureaucracies of the EU government and member nations.
Mueller spends more than a few words on Microsoft, pointing out that the company made much of its billions before it was focused on obtaining patents. Referring to past complaints from Bill Gates on the dangers of patents for innovation and competition, Mueller says Microsoft is now responsible for a patent arms race that has it filing for around 3,000 patents per year. He describes this as largely a response to the threat of open source software.
In the end, the pro-patent forces got no software patent directive at all. It did not drive them out of business, and it proved that unstoppable objects could be stopped, that small companies and entrepreneurs could take on monopolies, and that open, honest lobbying with a little corporate help can shape a continent’s direction.
Unfortunately, the sequel to Mueller’s tale of clinching victory from the front teeth of defeat is playing out now in the form of another patent fight in the European government. This time, the enemy may be even more formidable as it learns from its defeat, Mueller says. He also worries that the pro-patent side may attempt a back-door effort to establish a pan-European “community” patent, or mutual recognition of them. However, as “No Lobbyists As Such” demonstrates, the forces opposing software patents in Europe are adept at uniting against the common foe, and are bolstered by their past efforts that, at the time initiated and “as such,” were not given much chance of success against the powers that be.