May 6, 2003

False open source representative calls for European software patents

- by Bruce Perens -
A false or misled "open source representative" has signed
an industry resolution calling for
the EU to allow software patenting, which has been sent to members
of the European Parliament. Copies of the resolution are
here and

here.The European Legal Affairs Committee holds a plenary vote on
software patenting this Wednesday, and may have been influenced by
the false representation.

Graham Taylor is director of Open Forum Europe, an
organization that is purported to work for broader acceptance of Open
Source. Taylor has appeared at various trade shows in Europe, saying
reasoanble things about Open Source, for the past year.
Open Forum Europe is a
division of IT Forum Foundation and InterForum. InterForum's
membership includes a number of large companies that have a vested
interest in the promotion of software patenting in Europe.
Mr. Taylor's sponsor organization is well
connected with the EU government.

I would encourage Mr. Taylor to evangelize Open Source
software, something he's done successfully for a while.
However, he does not have the credentials to represent the
Linux, Open Source and Free Software developer communities,
especially when he contradicts our extremely strong opposition to
software patenting.
While Mr. Taylor has been visible as a public
speaker, it does not appear that he has any engagement with Open
Source projects and developers, or that he brought this matter up
with representative organizations such as the
Free Software Foundation,
the Open Source Initiative,
and
Software in the Public Interest.
No legitimate Open Source representative would
think of taking this sort of position with government without
first holding a public consultation with the developer community.

Software patents could be fatal for Open Source software in the U.S.
and Europe.
Since we do not
collect royalties from the distribution of our own software, we have no
funds to pay royalties to patent holders.
Rather than sue us to collect money, expect patent holders to sue Open Source
developers to restrain them from distributing their software or carrying
out further development. Companies that produce proprietary software
would bring that sort of suit to kill us off as a competitor.

While we can sometimes work around a patented algorithm that we know
about, the Open Source developer is not able to defend himself from patent
infringement claims, even invalid ones. In the U.S., the cost of a patent
infringement defense often exceeds US$500,000. The Open Source
developer, an individual working on his own time, won't have the
funds to defend himself.
He will be compelled to settle with his
accuser, regardless of the merits of the case, in order to preserve
what assets the plaintiff deigns to leave him. The copyrights of his own
software won't be among those assets.

We are especially threatened by royalty-bearing software patents
that are embedded in industry standards. In many cases, it is
impossible to achieve compliance with a standard without infringing
upon the patented algorithms that are specified by that standard.
Standard compliance is critical for interoperability, and thus software
patents in standards can make an un-communicating island of a Linux
system. For example, the IEEE 1488 FireWire standard is encumbered by
patents that apply to the software interfacing to it, and a patent
royalty pool is operated in connection with that standard. Linux
implementations of FireWire are potentially infringing, and prosecution
could result in our software becoming legally unable to access FireWire
devices.

We can not expect our industrial partners, such as IBM and HP, to
help with patent defense or with the matter of software patenting in
general. While those companies are often our friends, their interests
also come into conflict with ours. Some of them use software patents to
generate revenue or provide monopolies for their businesses.
Thus, IBM has
been calling for increases in software patentability, despite the fact
that this is contrary to IBM's involvement in Open Source.

We also can't expect those companies to go against their own
business partners in our defense. In 2002, Microsoft informed its
business partners of its plans to bring patent infringement lawsuits
against Open Source projects, an intention that it had made public as far
back as 2001, in an appearance by Microsoft V.P. Craig Mundie at an Open
Source conference.
Microsoft is probably holding off enforcement
until the question of European software patentability is settled, lest
they dissuade Europeans from allowing software patenting. Last year, HP
signed a "non-aggression pact" with Microsoft that may prevent them
from assisting us in the future. It's unknown whether IBM would be
interested in opposing Microsoft to protect an Open Source project or an
individual Open Source developer.

One problem we have in holding off software patents is that we have little
damage to show so far.
Although at least one company has made its plans clear, there has been little
prosecution of Open Source developers for patent infringement to date.
My surmise is that anyone who has a patent to prosecute will hold off until
the European software patent decision is made. They wouldn't want to provide
evidence against the very laws they are seeking.

Thus, software patents present a tremendous threat to Open Source,
perhaps a fatal one once Europe joins the U.S. in broader software patenting.
Yet, the letter signed
signed by Mr. Taylor proposes no real protection for Open Source, only
that the government monitor for damage and publish reports.

In correcting the actions of Mr. Taylor, I should explain who I am
and what right I have to represent Linux and Open Source developers.

I have been a speaker for the community of Open Source developers
and programmers since 1993. I am co-founder and elected director of
Software in the Public Interest, Inc., a tax-exempt non-profit
organization that supports a number of prestigious Free Software
projects. SPI's members are individuals, most of them authors of
software that they have contributed under an Open Source license. I am
the creator of the Open Source Definition, the manifesto of the Open
Source movement in software. I contributed my first Free Software in
1987, and have been a major Linux developer since 1993. Free Software
that I've written is in widespread commercial use and has flown on the
Space Shuttle. You can see my resume here.

I generally act on consensus of a larger group of leaders including
members of the Open Source Initiative, Software in the Public Interest,
the Free Software Foundation, and various software projects. I have
issued this alert individually because it regards a government decision
less than two days away, but will consult those organizations regarding
how to proceed.

In writing this alert I am relying on information provided by

  • Hartmut Pilch, FFII & Eurolinux Alliance
  • Bernard Lang
  • Francois PELLEGRINI

Bruce Perens

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