Monday, September 18, 2006

The Extremist Agenda and the Banana Bunch

This weekend in Sweden the voters kicked out the incumbent Social Democratic Party after seventy years in office, and turned the Pirate Party into a small but real political force.

It's one thing to collect a few thousand signatures on a petition. It's quite something else to collect real votes.

The Pirate Party runs on a charmingly simple agenda: reform the copyright system, get rid of the patent system, and protect citizens' rights to privacy.

It's an agenda that gains its own momemtum as Europe's politicians enact more DCMA-like laws, as they turn the patent system into a money-printing license scheme, and as they enact data retention laws that make the old Communist spy states look like amateurs.

I find it ironic that the FFII, who have campaigned for reform of the patent system, are labelled "anti-IP extremists" by those pushing for the patents-grow-on-trees vision of the world. When economists call on governments to stop printing excess money because this leads to inflation, are those economists really "anti-monetary extremists?"

It's worth reflecting who are the real extremists in the patent debates. On the one hand, we have laws (the European Patent Convention, and its peers in each country) that were designed to promote innovation. They do this by granting temporary monopolies on significant inventions, in the specific cases where breathing space is necessary for industrial production. These laws were designed to promote innovation and the economic benefits this brings. These laws specifically and clearly exclude computer programs and business processes, for excellent reasons.

On the other hand we have an alliance of politicians, bureaucrats, patent specialists, and patent attornies from large software firms, who have systematically bent and broken these laws since the mid-80's. I call this crowd the Banana Bunch because their goal is nothing less than the removal of all barriers to patentability, so that patents become as cheap as bananas.

Traditionally, we've used prior art, inventive step, industrial application, and subject matter to keep the patent system sane and restrict patents to areas where they are beneficial. These are the four key criteria intended that ensure only good patents are granted. And these criteria have been systematically undermined and devalued. The reason? The Banana Bunch see patents as an inexhaustible source of revenue, just like so many failed autocrats have used the central bank printing presses to pay the army.

Any programmer knows that patents don't have sense in the software world. We use copyright. It's the strongest and widest-used intellectual property model, and works very well for software, writing, music, movies, and so on. Copyright is not perfect. For example, I don't think it makes sense that my programs are copyrighted for seventy years after my death. But it's better than any alternatives I know. Programmers and small-to-medium IT firms don't want or like patents, not because we're anti-IP or anti-business, but because we see very clearly that software patents will make it much harder for us to do what we do, which is to invent and innovate our way into new markets.

Big IT firms don't really like software patents either but mostly it's the IP lawyers who call the shots. Take a look at any large software firm when they speak on the subject - it's not the CEO or CTO who speaks, but their chief IP counsel. The Banana Bunch is in charge of IP policy in most large IT firms. It's definitely taken over IP policy in the Commission. The EPO itself lobbies MEPs with full-page adverts, just as if it was a large for-profit business.

Now let's consider the label "extremist". Who are the extremists? The Banana Bunch look extreme to me. Their agenda is damaging the EU institutions. It's devaluing the patent system. It's weaking the democratic process and it's giving all those who say, "the system is not working", a valid argument. I can understand the motives. Money and profit are powerful incentives. Powerful financial incentives make for extreme agendas.

What about the FFII? The FFII wants to see the letter and the spirit of the law respected. We want to see institutions like the EPO fall under control of elected bodies. We want accountability. We want the law-making process to reflect wide needs, not special interests. We hope to make no money from our work, only the right to do business as before. Does this make us extremists?

No. Rather, it makes us fundamentalists, conservatives, moderates. We've been accused of not understanding the patent system but I think we understand it better than the "experts". We see it as a balance, as a complete system, with potential to help or hinder innovation. The Banana Bunch see it as a pretty shiny magical money-printing machine and they seem blind to the consequences of its abuse.

And yet the FFII finds itself excluded from the process. Our proposals are rejected or ignored. Our answers to the Commission's consultations are treated as spam.

The Banana Bunch is working through the Commission to put into place a Europe-wide law, the EPLA, which will take EPO case law (not the written law, but the EPO's interpretation of it) and make that the standard for all Europe.

The Commission campaigns behind the scenes for the EPLA, with fraudulent consultations that it packs with the opinions of selected friends, opaque 'task forces' led by Banana Bunch lawyers, parliamentary resolutions drafted by the Banana Bunch comedy duo of Lehne and Bowles... a year-long Banana Bunch astroturf campaign designed to create the mirage of demand for an Europe-wide patent system governed by the EPO.

An IBM researcher, Dr. Shmuel Ur, recently said that, "Currently the legal overhead to the medical system in the USA is about a third of the total cost, I fear the IT industry is heading in the same direction, and fast."

This is what the Banana Bunch want, because that legal overhead is, to them, 100% profit. It's the same reason US trial lawyers resist changes to tort law. Lawsuits are excellent business.

Now, let's imagine the Banana Bunch get what they want, and all restrictions on patents are removed. The EPO's rulings, which allow patents on every conceivable idea and notion, so long as they are properly drafted, become EU law.

What happens when the moderates fail?

History is full of sad precedents. Regimes are often terrible at listening to moderate voices. Mao Zedong said, "political power grows out of the barrel of a gun", suggesting that moderate dialogue is a weak and ineffective way to make structural changes.

The Banana Bunch are rich, well-connected, and well-positioned in this fight, but I am going to issue a warning about who their real opponents is, in this esoteric fight about patent law, EU jurisdictions, and institutional accountability. It's not the FFII. We're not against the patent system, only against a bad patent system. We don't object to companies making money from patents, so long as they don't do damage to the industry in question.

The Banana Bunch have two real enemies. First, their own hubris and greed, which will probably be the cause of their downfall. Second, abolitionist tendencies like the Pirate Party, which will probably be the means of that downfall.

The Pirate Party's "get rid of the patent system" agenda is indeed extremist. It says, "dialogue with the patent system is not possible, so we want abolition". The Pirate Party is really just waiting to see what happens this year. Will the Banana Bunch beat the moderates? Will we get an IT industry where the legal overhead is a third of total costs? Will the FFII fail in their attempts to reform the patent system?

When hundreds of thousands of pathetically poor patents are granted and enforced by an undemocratic court run by a non-EU body... why bother attacking these patents one by one? Abolition is a much easier argument, and it is the logical conclusion to the current trends. And of course, if the patent system is abolished, patent lawyers will become like EU custom officials, an unlamented endagered species.

Thirty years ago, the German Green party was formed mainly on a platform to rid the country of nuclear power, after total failure to reform the nuclear power industry through dialogue. It started with a few thousand signatures, and a handful of votes. Today, the Green Party has enough power to fulfill its promise, and Germany will find itself in the post-oil era without nuclear engineers and without nuclear power.

EPLA, if successful, will be the shot that ends moderate dialogue and starts the abolitionist race. And this time it won't take thirty years.

1 Comments:

Blogger Ben said...

Extreme bananas for discourse and sanity? Works for me.

My "dialectic discourse" method comes out of 3 decades in coffee-klatches and workshops and concensus process planning meetings ... we're spinning our wheels on most issues, because we have a whole collection of gorillas sitting on our front grills. And their handlers label us "extremists" to spin the PR.

good to see you public, Pieter. sometimes great things can change with no more than a pop cap.

p.s. I just commented at O'Reilly on "The lighttpd Web Server".

1:44 AM  

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