February 20, 2002

Collusion discovered between BSA and European Commission

Author: JT Smith

From EuroLinux Alliance: The European Commission is
likely to approve this wednesday a proposal of directive on software
patents. EuroLinux has managed to obtain a draft version of the
proposed directive. The same document was sent to a few official
representatives in European national governments.

Incidentally, the author of this document, according to the Microsoft
Word file (http://petition.eurolinux.org/pr/proposal.doc), is Francisco
Mingorance (franciscom@bsa.org), patent expert and director of public
policy at BSA (Business Software Alliance), an association which
represents the interests of large US software publishers in Europe.

Software patents are a major legal issue in the information society.

Copyright is currently the right way to protect software publishers
against piracy. "Copyright provides a simple and very efficient
protection to the software economy" says Matthias Schlegel, CEO of
Phaidros. "Copyright is the prefered protection of SMEs and
independent software developers [1]. EuroLinux strongly supports
copyright." adds Harmut Pilch, speaking for the EuroLinux Alliance.

On the other hand, software patents allow one company to monopolize an
idea of software (ex. patent EP0800142 on the conversion of file names
between DOS and Windows) or an idea of business on the Internet (ex.
EP0756731 on generating buying incentives from the distribution of
cooking recipes), thus prohibiting other companies to use the same
idea, even when implemented differently. Because software is always
based on a creative arrangement of a few innovative ideas and many
common ideas, all European software publishers are infringing on
hundred patents among the 50.000 software patents owned by IBM,
Microsoft, Sun or Sony, etc. "Thus, instead of protecting software
publishers, software patents create a tremendous juridical uncertainty
and allow large IT companies to completely control the software
economy, block innovation and block competition by prohibiting one
software to be compatible with another" says Stéfane Fermigier, CEO of
Nuxeo. "Software patents allow large IT companies to steal the
intellectual property of smaller players, both by taking control of
their copyrighted creations and by forcing them to disclose and trade
their most competitive ideas in return for being allowed to live."
adds Jean-Paul Smets, CEO of Nexedi.

The content of the proposed directive draft legalises the illegal
practice [5] of the European Patent Office of granting patents on
software and on business methods [2]. The proposed directive draft
requires inventions to be "technical" but fails to define what is
technical, thus creating an undefined limit to patentability in
Europe. The proposed directive draft does not contain any provisions
to prohibit patents on Internet standards, to garantee
interoperability and fair competition, to protect SMEs against
juridical terrorism or to to ensure that shareware and open source /
free software are not put at a disadvantage. It paves the way to a
global control of the information society by multinational -- mostly US
-- IT corporations.

Patents are supposed to promote innovation. However, all economic
studies show that the introduction of patents in the software economy
stiffles innovation. [3,4,6,7,8]

Patents are supposed to protect independent innovators. However, all
official studies show that most if not all European software creators
will just face more juridical risk without better protection.

According to the Rome Treaty, EC directives are supposed to raise the
level of protection for consumers and to promote the development of
technologies. However, this directive discourages competition and
innovation, and by allowing large corporations to tax - through the
use of IT - all economic activities, this directive goes against the
Rome Treaty. It is thus constitutionally illegal.

Eurolinux hopes that, by making public this draft document, the
European Commission will be encouraged to publish without delay the
final version of the proposed directive, at the same time as the
expected press release and to provide the same level of information to
European Citizens as to the BSA.

Draft Directive

Please download the draft directive at

In order to understand the technical language of the directive and its
juridical implications, EuroLinux has prepared a commented version at
http://swpat.ffii.org/vreji/papri/eubsa-swpat0202/. Please do not
hesitate to call for more explanations on this technical material.


[1] Acceptable protection of software intellectual property: a survey
of software developers and lawyers. Effy Oz. Information & Management
34. Elsevier 1998.

[2] European Software Patent Horror Gallery -

[3] What is behind the recent surge in patenting? Samuel Kortum, Josh
Lerner. Research Policy 28. 1999. Elesevier

[4] Abstraction oriented property of software and its relation to
patentability. Tetsuo Tamai. Information and Software Technology.
1998. Elsevier.

[5] Juridical Coup at the European Patent Office -

[6] Software Patentability with Compensatory Regulation: a Cost
Evaluation. Jean Paul Smets and Hartmut Pilch. Upgrade February 2002

[7] Fraunhofer Study about the Economic Effects of Software Patents.
Micro and Macroeconomic Implications of the Patentability of Software
Innovations. German Federal Ministry Economics and Technology.
November 2001.



[8] Stimulating competition and innovation in the information society.
Conseil Général des Mines. September 2000. -

About EuroLinux - www.EuroLinux.org

The EuroLinux Alliance for a Free Information Infrastructure is an
open coalition of commercial companies and non-profit associations
united to promote and protect a vigourous European Software Culture
based on Open Standards, Open Competition, Linux and Open Source
Software. Companies, members or supporters of EuroLinux develop or
sell software under free, semi-free and non-free licenses for
operating systems such as Linux, MacOS or Windows.

The EuroLinux Alliance launched on 2000-06-15 an electronic petition
to protect software innovation in Europe. The EuroLinux petition has
received so far massive support from more than 100.000 European
citizens, 2000 corporate managers and 300 companies.

Permanent URL for this press release



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