FSFE Newsletter

Rui Miguel Silva Seabra rms at 1407.org
Tue Jan 8 16:45:18 UTC 2008

On Tue, Jan 08, 2008 at 04:23:30PM +0000, simo wrote:
> > Software patents are invalid in Europe so...
> They should be, yes, but that can only be established for each patent in
> front of a court.

Nopes. Art. 52.2, and most countries legislation clearly exclude
software patents. That has been established.

Let them sue, in Europe, and get their patents nullified by court.
The problem is:
 * going to court is costly and uncertain
 * nulifing patent by patent is idiotic

Also, EC has no duty promoting an illegal point of view.

> > I am not so confident as you are in the wording.
> Well, who sign the agreement need to be concerned about the wording,
> unless you are thinking of signing an agreement with the PFIF to get
> access to the documentation it doesn't really matter if you are
> confident or not.
> At most the single developer that sign the agreement is screwed.
> I am pleased you are concerned with Samba Developers future, but I guess
> we can manage to understand, get professional legal counsel, and decide
> on our career by ourselves :-)

Actually, I'm more concerned with the lack of response to the patent
issue, which legitimises Microsoft's software patents.

> > > > > > The EU is happy-happy joy-joy[1] about the whole charade where it
> > > > > > has granted Microsoft the right to demand royalties for it's software
> > > > > > patents to Free Software users.
> > > > > 
> > > > > The EU has no such granting power, patent law allows Microsoft to ask
> > > > > for royalties.
> > > > 
> > > > And EC recognises software patents, Q.E.D.
> > > 
> > > Well this is your mantra, not mine, I guess we just disagree here, time
> > > will tell.
> > 
> > Oh really? Counter with facts please:
> >  * EC or even CoJ can't affect juridisctions outside EU, namely the USA.
> They do not affect jurisdictions, that's why they can't rule patents
> invalid,

Neiter rule them valid, like they did, by acknowledging them.

> The only option for MS to not stick to the agreement and avoid fines is
> to exit completely the EU market. You may understand this is a very
> compelling reason to agrre with the EU on how to license stuff
> worldwide.

EC wasted the opportunity. Microsoft would cave in rather than loose the
European market.

> >  * EC or even CoJ can affect the juridisction of European Union.
> The EC can't, the EC can propose directives that need to be approved by
> the parliament and the council. The EC can execute according to
> directives, that's the main job of the EC.
> The CoJ can resolve issues and enforce European law, but nothing more.
> >  * Software patents are against the letter of the law
> I believe this to be true. But you know very well it is not so clear cut
> you can assert it easily at legal and political levels. It's more
> complex than that.

By the contrary, it is quite a clear cut. It actually is even a
violation of TRIPS[1] and the Geneva Convention[2]. It is a violation of Art.
52.2 EPC[3]. It is a clear cut. It only isn't a clear cut when you have the interest
of curbing the meaning the the law[4].

[1] which redirects the software case to the Geneva Convention
[2] which says software is a literary work
[3] which clearly excludes patents on software
[4] when you try to pretend "as such" could mean that software is a self
sustained entity

> > > patents on the table and the EC options were around how to make MS
> > > license them.
> > 
> >  => recognising => legitimizing them
> repeating your mantra will not necessarily make it more true, or
> relevant ... try telling me something new, I got your position already.
> > > Ignoring them would have meant leaving MS carte-blanche on how to
> > > license them.
> > 
> > I didn't say ignore. It should outright exclude them in the valid
> > jurisdisction.
> ? YANAL right ?

Exclude them from the results. They don't matter at all. They can't
consider as acknowledgeable something which is agains the law.

> > > > > I can't see this big patent problem you see, the fact that a certain
> > > > > part of the establishment is ok with software patents is not new at all,
> > > > > we all know that.
> > > > > I honestly don't think this case changes any balance in that respect.
> > > > 
> > > > Of course not, other than EC recognising software patents, its virtually
> > > > unfelt by Microsoft.
> > > 
> > > So the EC was previously not recognizing them and now it does?
> > 
> > It is you who claim that. I don't claim that *anywhere*. In fact I claim
> > they legitimise them.
> > 
> > I don't understand how you can give such a blind-folded benefit of
> > doubt.
> Don't think I am pro software patents, but the situation is more complex
> than the simple statement you keep repeating.

I don't think that. Not at all.

> What I am saying is: the EC is not a single body, there are many people
> with different political views in there, but it is true that in general
> it has been pro-software patents in the past.

And present. They are not deserving a benefit of doubt.

> What I think is: I see absolutely no difference after this ruling wrt EC
> stance on software patents, therefore I don't think their position on
> this point is a big deal or changes the landscape in any sensible way.
> I just think you are pumping up way too much a legitimate concern, but a
> very minor one in the specific case.

What, that they legitimise Microsoft's software patents and FSF Europe
stays quiet? Something should have been said.


Today is Pungenday, the 8th day of Chaos in the YOLD 3174
+ No matter how much you do, you never do enough -- unknown
+ Whatever you do will be insignificant,
| but it is very important that you do it -- Gandhi
+ So let's do it...?

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