[Fsfe-ie] Article from Out-Law following email from Stallman

[Barry Mahon]

This was published just before the abortive attempt to ram the Directive through; hence the references....

The headline seems to be misleading - to me....

http://www.out-law.com/php/page.php?page_id=developersneedprot1103631016&area=news

"Developers need protection from patents, says Richard Stallman

21/12/2004

In what may seem like a bizarre twist to the ongoing debate over software patents, the Agriculture and Fisheries Commission is expected to rubberstamp the European Directive on computer-implemented inventions today.

The approval should be a formality. The reason for giving it to experts on crop pesticides and North Sea trawlers – who will not debate the measure – is one of haste: it's the only way to seal the draft law's final approval by the Council of Ministers this side of 2005. Its next audience, the European Parliament, is likely to be more critical at a Second Reading in 2005.

The controversy over the Directive is sure to follow the legislation into the new year. A recent OUT-LAW article, based on criticisms by Dr John Collins, a partner with Marks & Clerk, the UK's largest firm of patent and trade mark attorneys, against the stance of the open source software movement, provoked a rebuke from one of its forebears, Richard Stallman.

Stallman is the founder of the GNU Project, launched in 1984 to develop a free operating system called GNU. Whenever you hear of Linux, you are actually hearing a reference to a variant of the GNU operating system which uses the Linux "kernel" – or the core of the system that provides basic services for all other parts of the operating system shell.

In the OUT-LAW article, Dr Collins argued that Linus Torvalds, founder of the famous Linux variant, was wrong to suggest that the draft Directive will broaden what can and cannot be patented. "This is simply a false assumption," said Dr Collins. He continued: "Torvalds and his supporters lack a fundamental understanding of intellectual property rights as they seem to be unaware that copyright can only protect software code, and not software inventions."

"Allowing for patent protection on software inventions is a requirement of the World Trade Organisation's TRIPS agreement which states that patents must be available in all fields of technology."

But Stallman, who also sits as President of the Free Software Foundation, disputes this on several counts. In an e-mail to OUT-LAW, he wrote:

"I have been campaigning against software idea patents for 14 years, and I welcome the support of Linus Torvalds. Both he and I are well aware that copyright covers the details of expression of a program and does not monopolize ideas - whereas every patent is an explicit monopoly on use of some idea. This is precisely why we are campaigning against software patents and not against software copyrights.

"Both of us are noted for developing powerful, successful software packages (which, taken together, form the basis of the GNU/Linux operating system), and both of us are aware that such projects entail combining thousands of different computational ideas. If a country allows computational ideas to be patented, developing a large useful program means running a gantlet of patent threats - which only the megacorporations think they can do.

"Offering us the opportunity (at great expense) to use patents to take shots at other software developers would hardly assuage the damage that others would do when they point their patents at us. The European Parliament understood that the 'patent protection' software developers need is protection from patents.

"Fortunately, Dr Collins is mistaken in believing that the GATT agreement requires software patents. Several other countries that adhere to the WTO reject software patents, and the European Union would be wise to join them. In the past few years, the European Patent Office has issued over 30,000 software patents, in blatant defiance of the treaty which set it up. The Parliament's version of the directive will reaffirm that these patents never had validity, and will keep European software developers and users safe. Now the question is whether the Council of Ministers will support developers and users generally, or the megacorporations only."

We put this to Dr Collins. He responded:

"Richard Stallman's accusation that people in the debate of either being confused or trying to confuse is grossly unfair to those seeking to clarify the law in this field. It must be remembered that the [Computer-Implemented Inventions] Directive set out only to clarify and unify the law in the EU. Its remit was never to change the law.

"The essential problem is one of definition: what is and is not patentable. I doubt there can be any argument that all fields of digital processing should be excluded from patent protection e.g. digital TV, medical scanners and imaging and telecomms. All of these technologies involve software. The EPO have developed an approach, which not unreasonably says that inventions involving software are patentable so long as there is 'technical contribution'. Of course this is open for interpretation but I have heard no alternative workable definition. The parliament's version was certainly not a workable solution since all digital processing was excluded from patentability.

"I have heard calls for 'pure software' to be excluded. What is 'pure software'? I have also heard calls for software on general purpose computers to be excluded. What is a general purpose computer? For example, I am typing this on a Blackberry hand held device. Is this a 'general purpose computer'?

"What I, as a legal adviser, seek is clarity to assist in advising clients. Clarity is good for my clients in many respects, not least because the cost of legal advice is lower when the law is clear. The Parliament's version will not be good for my clients and EU industry in general because it will not bring about clarity and will in fact change the law. Any changes in law, particularly when as unclear as the Parliament's version, will increase legal cost and uncertainty."

Dr Collins did not defend his point about TRIPS "requiring" software patents. However, it is an argument that arises frequently in this debate. TRIPS, or the Treaty on Trade Related Aspects of Intellectual Property Rights, was signed in 1993 as a constituting document of the World Trade Organisation (WTO). It sets minimal rules for national intellectual property law in order to prevent member nations from using intellectual property as a hidden trade barrier against other nations. A particular provision of TRIPS has often been construed by patent lawyers to imply that patent claims must be allowed to extend to computer programs.

This provision, found in Article 27, states that "patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application." Whether this requires software patents depends on your interpretation of these words.

Richard Stallman actually objects to the term "intellectual property rights," considering it harmful and misleading to put patent and copyright protections under the same banner. "People who use the term," he writes, "are generally either trying to confuse you, or are already confused themselves. Since Dr Collins is a trained specialist, I think he knows what our point really is, and that he only feigns to misunderstand." (See Stallman's article about the semantics.)

The Agriculture and Fisheries Commission is due to vote at 3pm today. It should have voted earlier in the day, but according to an article by The Register, there was a last minute delay caused by a plea to Germany's Minister from the Mayor of Munich, asking that the Directive be removed from the Commission's agenda altogether. Mayor Christian Ude said the proposal merits further discussion rather than a rubber-stamping"