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.

Rui

-- 
P'tang!
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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