An important victory in Europe but not a final one

source: newsforge

22.Oct.03 - 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 in any medium provided this notice is preserved.