Software patents: They're back! - Discussion

22 Jan 2006


      FYI -- in case you didn't follow the news last week: It seems that
software patents are back on the agenda.
[ http://www.fsfe.org/fellows/greve/freedom_bits/software_patents_they_re_back ]
Software patents: They're back!
freedom bits
greve
Sunday 22 January 2006
"I'll be back" has generally made it into history either as a
   promise or threat by a mediocre actor and/or even more mediocre
   gouvernator.  But while the Terminator needed 7 years for a first
   reappearance, and another 12 for its second, the "Terminator of
   European Economy" (Mr Charly McCreevy) only needed months to bring
   software patents back on the agenda, as we learned last week.
While IBM senior vice president John Kelly compared software
   patents to nuclear weapons in his April 2005 statement to the New
   York Times
"This is like disarmament. You're not going to give away
     all your missiles as a first step."
the European Commission is happily pushing for the economic
   equivalent of Terminator's SkyNet. (In case you are new to the
   subject, you can read in this series of open letters how software
   patents affect various areas of economy and politics)
Yesterday, German publisher Heise featured another article about
   the reappearance of software patents on the agenda, in which
   Günther Schmalz, head of SAP's software department, is quoted
   saying "It starts again."
And just as the first Terminator went down after a long and
   desperate struggle involving all sorts of fireworks, Mr Schmalz is
   being reported saying that software patents were buried
due to the better lobbying of the opposition, said the SAP
     manager. They met the members of the EU parliament far more often
     and hit the parliament's nerve with their demonstrations.
but just like the second Terminator was more fearful and dangerous
   than the first
the patent proponent expressed hope that his camp will be better
     prepared this time than during the last struggle.
So they're coming back, and they are prepared. But so are we, and
   like Linda Hamilton did not stop coaching her son for the next
   meeting with another Terminator, we did not let down our guar. We
   were always aware they would be back.
Günther Schmalz is also quoted in the following way:
Schmalz justifies SAP's commitment for a EU-wide regulation with
     SAP seeing patents as the only way to ensure returns on its
     development investment. Copyright is no solution, he continues,
     as the actual writing of code only makes up about 20% of the
     development of software. "Those who drive innovation need
     patents", Schmalz stresses. "Those who don't imitate."
This puzzled me for a second in the same way that the logic of
   proponents of "intelligent" design sometimes surprises me with its
   circular logic, or in the way a person on an airplane trying to
   open the door in mid-flight would puzzle me. I have tried to
   understand how it is possible that the head of SAP's software
   development could make such a nonsensical statement about software
   development. Here are my theories:
* Mr Schmalz believes that software developers are essentially
       glorified typists, and that whenever no key is being pressed,
       no programming is done. This would imply a disturbingly limited
       understanding of what software developers actually do.
* Mr Schmalz does not consider testing, bug-fixing and other
       tasks to be part of programming. If programmers have to work
       according to that maxime, it could explain the quality of some
       of SAP's software, I guess.
* Mr Schmalz thinks that it is the act of typing that constitutes
       Copyright, which would be an amazingly naive view of Copyright
       law. It would also mean that the Copyright of a book would be
       with the typist if the literary author "merely" dictated it.
* And finally my favorite: SAP is such a great employer that
       programmers only have to work 20% of their time and spend the
       rest reading the papers, getting massages, doing sports and
       watching TV.
In any case this statement makes it seem like Mr Schulz does not
   know much about software development or law. A peculiar combination
   for a head of software development. But then: SAP hasn't really
   developed anything innovative in years. And no, I don't dare to
   predict the causality in this case. Bill Gates however seemed to
   know much more about software development when he said in an
   internal Microsoft memo that was published by Fred Warshofsky, The
   Patent Wars (1994):
"If people had understood how patents would be granted when most
     of today's ideas were invented and had taken out patents, the
     industry would be at a complete stand-still today. [...]  A
     future start-up with no patents of its own will be forced to pay
     whatever price the giants choose to impose. That price might be
     high: Established companies have an interest in excluding future
     competitors."
But maybe Mr Schmalz was misquoted and he actually said that:
   "Those who drive away innovation need patents."
Misinformation has at all times been part of the pro-software
   patent campaign. Remember the term "computer-implemented
   invention"? People tried to say this directive was about allowing
   patents on washing machines, braking systems, battery chargers. How
   many washing machines did SAP sell last year? Or the year before?
   Why would a pure software company take an interest in this
   directive if it weren't about software?
Truth is that this debate is only about software patents, about
   monopolies on logic blocks, ideas and applied mathematics. Those
   who would like to see these fundamental building blocks monopolised
   in their hands are back. We beat them once, and we can do it again.
Because even though the second Terminator was so much quicker,
   stronger and more well-prepared, we all remember the end of the
   second movie.
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