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.

Saturday, September 09, 2006

EPLA = software patents

The software patent war is heating up again.

In some ways it's very much like last time, in 2005:

  • The EU Commission and EPO are collaborating to push for new patent legislation.

  • Big Software is promoting the Commission's proposals.

  • New proposals and resolutions are coming to the European Parliament.

  • And apparently, it's got nothing to do with software.

What's going on? Well, the European Patent Office (EPO) and its friends in the Commission, Big Software, and the patent business, have a new strategy for introducing US-style patent laws into Europe. The trick is simple. Today, while the EPO happily and profitably grants lots of software and business process patents, national courts repeatedly strike these down.

Judicial independence has been a major stumbling-block to a larger and more profitable patent market. National judges stubbornly insist on sticking to their national laws, which mostly forbid patents on software and business processes. These troublesome national courts don't seem to realise that the world has changed and that more patents are the key to future prosperity. Especially if you're a patent lawyer or expert. And software and business processes - as the US has shown - are by far the best growth area. One can literally invent an infinite number of patents from mundane IT. Take any idea or process, add "on a computer" to it, and you have a new invention!

So the plan is to bring all these troublesome national courts under the umbrella of the EPO, which in its wisdom has long ago stopped trying to limit its customers' natural right to patent everything under the sun.

The Commission ran a "Community Patent" consultation earlier this year, and when it did not get the general support it wanted, it simply cheated. Behind the scenes - after the consultation closed - it rang up individual firms known to be patent holders, and helped them answer the consultation. It then organised a parade of talking heads all known to want software patents, and told the world, "Lo! Everyone wants the EPO's vision of patents!" Only a few token opponents spoke out.

And the Commission's master plan is called EPLA, or European Patent Litigation Agreement.

The goal is to expand the EPO's power so that national courts no longer have the right to strike down illegal patents. Think about this for a minute. EPO board-of-appeal case law - defined by EPO judges who sit 100% outside any national or EU control - will override national law. Judges sitting in an institution that is totally outside democratic control will define how we do business.

It would be troublesome even if these judges were known to be fair and wise. But the EPO is not a neutral party. It has strong economic interests in exploding the patent market, whatever the cost to smaller firms. Not only is the EPO untrustworthy, it is corrupt. The same individuals work in the EPO, advise large firms on patent strategy, act as lobbyists at EU institutions, and start their own patent-holding firms. It is a revolving door where individuals write laws and then profit directly from them.

We stand before a clear choice: expand the EPO's powers to control the whole European patent system, or reform the EPO and bring it under better control. I've nothing against the patent system in principle. Patents are monopolies that can, in the right circumstances, promote investment in innovation. But when patent law is used by a priviledge few as a money-making machine, and these same priviledged few then lobby for more and wider patents, to the detriment of existing intellectual property rights... when patents start to steal from copyright and make ordinary business impossible... when patents become a threat to innovation and our economic prosperity... then I get very angry. I've spent 25 years of my life writing software, protected by copyright. I don't need burocrats telling me that I need more IP protection.

If the EPLA moves forward, software patents will become common currency in Europe. This is visibly a major goal, seen by the enthusiasm shown by large software firms like SAP for the new proposals. I don't see much support for the EPLA outside the IT sector and all the support comes from the same large firms that pushed for the cleverly-named "Computer Implemented Inventions Directive" last year.

If the EPO's judges get control over patent law, patents on software algorithms and techniques will explode, and we will see a freeze of grassroots innovation in Europe. Further reform of our banking, insurance, and travel industries will stop as it becomes impossible to introduce new IT standards without risk of patent infringement. European integration is largely enabled by technology, and software patents place the entire European project at risk. I sometimes wonder if the Commission, in all their breathless enthusiasm for "stronger IP", realises quite what they are leading towards.

The USA shows what a mess an activist and corrupt burocracy can make of things when it captures control of the patent system. It is literally impossible to run an IT business in the USA without legal weaponry. This is the future of European business if the EPLA moves ahead.

Life for Europe's small and medium IT firms is already pretty hard. We pay a lot of taxes. We compete with firms in countries that have much cheaper labour. American investors love risk but European ones hate it. We have to deal with dozens of languages and other natural barriers. We have no Silicon Valley, no economies of scale, no ability to deal with a US-style patent system and the waves of litigation it will bring.

Small-to-medium IT firms have repeatedly and firmly told the Commission that they do not want software patents. The Commission pretends to listen but ignores us. Who cares what a hundred thousands small firms say or need when the message from ten huge firms is so clear?

So it's time to get active.

It's time to write to your MEP and tell him or her, "We don't want the EPLA".

It's time to fight for a reform of the EPO because this organisation is not doing its job.

It's time to join other activists and do what we did last year - change the world.