Software patents: They're back!
Georg C. F. Greve
greve at gnu.org
Sun Jan 22 13:13:52 UTC 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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