Ciaran O'Riordan (LP09)
The following are materials from Ciaran O'Riordan's presentation at Libre Planet 2009, March 21st, Boston.
- Audio: http://static.fsf.org/nosvn/Ciaran_O%27Riordan_-_End_Software_Patents_-_LibrePlanet_2009.ogg
- Slides: http://ciaran.compsoc.com/esp-boston-2009.html
Transcript
It's nice to actually feel welcome, because, for many years I was like the boogey man at conferences. People would come and present their software and they'd show what new features they'd coded in the last year, and then I'd come along and say software patents. I'd have to tell everyone to be scared.
So I do feel welcome, and when I started out working on software patents I was working in Ireland, and in Ireland, a group of us formed an organisation just to work specifically on software patents, it was called the Irish Free Software Organisation. Some people like out t-shirts, we have a gnu playing a harp.
(00:58)
So, my background: I'm not a lawyer, I'm not a legal expert, I'm a computer programmer, by trade. Or at least I was until I started getting into software patents. What this means is that I'm not a general spokesperson on software patents. Sometimes people ask me for my opinion on the Tom Tom case, or will Bilski go to the Supreme Court, and usually I don't know these things. I'm a programmer. What I do know is what I saw in the European Parliament because I was working on this between 2003 and 2005, and just from the general lobbying that we did during that and a bit after as well.
This is the first positive talk I've given about software patents. Things are going well recently. The most decisive battles in the last few years have been in the EU, the Bilski case, and India.
In the EU, very briefly, what happened is that there was a proposal to have software patents, and we fought back and forth for what was actually eight years in total, and in the end the entire proposal was scrapped. So it was all that work for nothing, but at least we showed that we could match the effort of the pro-software-patent campaigners and we gained a lot of political support and we showed that we can actually perform in this arena and that we can actually be involved in the legislative procedures.
It was also impressive in one other way because in Europe, we didn't really have structures working on software patents. Not big structures at least. It wasn't organised. We used to read Slashdot and we'd read about crazy patents in the USA and we thought that was hilarious. And then it landed on our coast, and... it was amazing, very quickly there was a movement and we managed to actually be effective. So that was impressive.
(02:57)
The second major decision was the Bilski case. I didn't actually follow the Bilski case, because, another thing in Europe is that we though it's pointless in the USA, that'll be the last country to get rid of software patents. So we were really happy. When I read the result of the Bilski case, it's very useful. And the USPTO board of appeals is now actually overturning certain patents, mostly IBM patents, based on the Bilski decision. It really does have a concrete outcome. So when we declare victory, it's not just a political victory - because everyone has to declare victory in politics - it's actually a real victory.
And it doesn't just affect the USA, because a lot of software businesses are global. The TomTom case is a good example because TomTom is a company in The Netherlands, but the litigation is happening in the US because that's the court that Microsoft has filed the documents at, and Microsoft has contacted the International Trade Commission to ask for a block on TomTom's products. So even for European companies, what happens in the USA is important.
And a second reason is that countries around the world, when they're talking about their patent policy, are usually asked to harmonise with the rest of the world, and "the rest of the world" usually means the USA. So the Bilsk case is important for people all around the world.
The third big decision was in India, and most people don't even know that there was a big decision in India. I think it was 2005, there was a proposal to change the legislation to have software patents, and there was a mad battle for maybe about three weeks, and the media discussed it for about a week and a half, and then the Parliament decided, yeh, that is a bad idea, let's not have software patents.
In Europe, we were left scratching our heads wondering what just happened there. It took us eight years to do that. So we feel kinda inefficient now. But the lack of awareness of what happened in India means that there's a gap. There's something not happening right in the communication.
Ok, so I'm working for End Software Patents now, and that's a campaign, a slightly separate project from FSF but the funding has come from FSF. However, software patents, it has to be made clear that it's not a free software issue. We don't want people to think that adopting free software means you now have a software patent problem. Software patents, they're a threat to all different types of uses of software.
Now, there are some problems that free software developers have. For example, we can't get a licence per copy or per user for a patent. In that way, software patents cause a particular problem for free software. But in other ways, we have certain advantages. For example, our development is distributed, a lot of our developers are volunteers, so there aren't big pots of gold that litigators can look at.
And another thing is that, because free software can be edited by anyone, if there's a problem with one part of an application, you don't have to take the whole application off the market or tell people: don't use the application. We can just take out that one infringing part and the rest of the application can continue to be used by as many people as possible.
(06:22)
So, there are plusses and minusses for free software [faced with] software patents, but it's not at all a free software problem.
This has been confirmed by the previous executive director of End Software Patents, Ben Klemens. He did a study of how software patents are impacting American companies, and he found that the litigation is costing American companies $11.2 billion. And most of the companies being litigated against... it's not free software companies, it's not even software companies, it's car manufacturers, it's food companies, it's any big company, any company with a pot of gold in the bank, because the point that Ben Klemens highlighted is that every company is a software company. Every company has a few programmers down in the basement that keep the email servers working, that make a website, that give you options to interact with your clients. And every company that does this is, without knowing it, is in the software business, and they're the biggest targets. It's not free software, it's non-software companies are the biggest targets for software patents.
(07:33)
So, this means that they should be doing the work, not me. Why aren't they? This is a problem. There are three categories of people, three main categories that will fight against software patents - now or in the future: There's the free software community, there's the small companies in general, and there's the non-software companies.
In Europe, we got a lot of help from the small companies. They have unions, and the unions talk to the politicians and they tell them that software patents are too expensive, completely unusable, it doesn't work with small companies. In America, from what I've heard, that isn't happening so much. The small companies are all business partners of the mega-corporations, so they're scared of annoying their business partners. In Europe, the same small companies are also business partners of mega-corporations, so there's something missing there. I don't know why the European companies aren't afraid of the same thing. We should get the SMEs active on this.
We should also get the non-software companies active on this. We just have to first convince them and explain to them that they are at risk and that many other companies have already been targetted. In the long term, hopefully the End Software Patents campaign will rely on small businesses making small donations, and big non-software companies making big donations. However, that's not happening yet, so at the moment we're relying on the free software community to kinda bootstrap the campaign. But even if we rely on the free software community, this isn't a specifically free software problem.
So, what we're focussing on is either changing the legislation or getting new results in the courts. There have been a lot of discussions about other ways of reducing the software patent problem. In general, these other ways have not been effective. They sometimes have small benefits or they work in small sectors, but in general, they will not solve the software patent problem.
I can briefly mention patent pools. All our friends put their patents into a pool and then if a big bully attacks us we can say: but we have patents too! But the problem is, of course, most of our friends, they have patent agreements already with the other patent holders, agreeing not to sue each other.
Also, when our friends put patents into a pool saying "We won't use these against free software", well, it's our friends putting the software patents in there, and we weren't afraid of our friends suing us. So it's not a big comfort.
We can review patents, we can look for prior art, we can look for patents that are too obvious to exist. Yeh, that can be useful. It's very slow, very expensive, but it can be useful. Sometimes if there's a particularly annoying patent, you can get rid of that. But in general, it can't solve the problem, and the TomTom case is an example.
TomTom have been accused of violating eight patents, I think three are software patents. They're patents that we know, or we're very confident, would be overturned in court. It's Microsoft's FAT patents. However, they might be overturned in a court, but what's to say that if these three, or all eight were overturned, Microsoft has 10,000 patents. What's to say that Microsoft won't just dig into their vault again and dig out another eight and say: well, you don't infringe those eight, do you infringe these eight? And this process can go on. In general, to get rid of the problem, we have to have zero software patents.
(11:10)
Another problem with quality is that some software patents are good quality. The RSA, the Mp3 encoding algorithm, public key encryption, however, there's no way you can go to a patent office and say: this is a terrible idea, it was completely obvious. So, trying to overturn them that way, it's not going to work completely.
A last option is our licences. In the GPLv3 process, we negociated various clauses that could be added to GPLv3 to protect some free software users from the patents of companies that distribute GPLv3 software. But this only protects us against companies that are distributing GPLv3 software, many of which are already our friends, so there was no problem in the first place. And also the clause... there were limits to how strong it could be because the stronger you make it, the more afraid the patent holders are going to be to distribute GPLv3 software. So, with our licences, we can only fix a very small category of the problem.
Some people wonder why we focus on software patents. How can you draw a line between different types of patents. One of the most important things is the tactical reasons, because, if we extend the theory and decide that actually software patents are bad and all patents are probably bad, what we do is, then, as well as having Microsoft against us, which is enough work, we also have the chemicals industry, and the auto industry, and the pharmaceuticals industry against us. And this is more work than we can handle.
So, in general, we take a position on software patents, but we don't take a position on pharmaceutical patents. Maybe pharmaceutical patents are bad, maybe they're good, that's just not our area. Another problem is that, in other areas, for example pharmaceuticals, sometimes the organisations that we think would be our natural allies - the generics companies in pharmaceuticals - sometimes they don't like our policy. We want: no software patents. But in the generics industry, a lot of the time they just want to talk about the length of patents, or how much damages you get, or how clear they should be. Our solution doesn't naturally apply to their work. We've done the research on software, we're sure that software patents are a bad idea, so we're focussing on getting rid of software patents.
(13:48)
The way ESP is going to work, is... under Ben Klemens, ESP worked on the Bilski case, which was extremely important. And Ben also did an economic study of the cost of software patents to American industry. These were very focussed projects. Now we're going to try to step back a bit and look at all the projects that are happening regarding software patents, and try to make all that information available to the other projects.
When I look back at the EU, it's only been four or five years, but already the fantastic documents that we had at the time, they're starting to disappear. Websites are changing, some news sites are disappearing, and it's very hard to find these documents. Some of these documents were only distributed in mailing lists that don't even have a public archive.
What we're going to do is, we're going to try to put all this information together on a website and make it accessible so that the information in the EU is accessible to America, Australia, New Zealand, and everywhere else. And the information from Bilski is available to these as well, so that other campaigns don't have to start from zero. They can build on what's already been done.
The first thing we're going to be putting online will be a wiki, and this will be in English first and hopefully then in other languages soon after. That will be publicly modifiable, and we hope that we'll be able to gather the information from all the parts of the world and different points of view, and we'll put it into some categorised format that makes it accessable.
Then we'll start doing an email alert, maybe once a week, on what's coming up in the short- or mid-term future, what needs to be worked on, what new events are taking place. And we'll put a news or a blog site online as well.
There will be more court cases in the US. Not in the very short term, but. There will also be new developments in the EU, and there are other developments in South Africa and New Zealand that we're aware of. However, we will not work on all of these. Or, when we do work on them, they won't be a 100% focus. What we're going to try to do is, work on each project, but always with a view to documenting, everything, all the steps, so that our work on each project becomes a whole that is more useful for future campaigns. So, rather than... End Software Patents can currently afford to employ one person. One person can be useful... I don't want to reduce my effectiveness, but one person can't do all the work. So it's more important to try o make a platform, so that other people can get active.
(16:41)
(WORK IN PROGRESS. CHECK BACK IN AN HOUR.)
Summary
(This summary provided by an audience member.)
Irish Free Software Organisation.[1]
Real victory with Bilski.
Tom Tom is in the Netherlands, but the litigation is happening in the US.
Disconnect with communication within the movement, not knowing about what was happening in India.
Ben Klemens did a study of how software patents are impacting American companies and found that the litigation is costing them 11.2 billion dollars. Car manufacturers, food companies... Every company is in the software business because every company is using software -- makes them a target.
Why aren't these companies doing the work to fight software patents?
Free software community, small companies, and non-software companies are the groups that will fight software patents. In Europe, small companies helped out a lot, with the assistance of the unions. But that's not true in the US because those companies are partners to larger corporations and don't want to offend them. That seems true in Europe as well, but for some reason the smaller companies aren't as afraid as they are in Europe.
ESP will rely on small businesses making small donations and large non-software companies making big donations. But right now we're relying on the free software community to bootstrap the campaign.
We're focusing on changing the legislation or getting new results in the courts. There has been discussion about other ways of reducing the problem but they have not been that effective and they won't solve the problem. Patent pools, for example.
Our free software licenses can help but only when patent holders distribute GPL software -- and they might be afraid to do that if it gets to be too powerful of a tool.
Don't take a position on pharmaceutical patents -- not our area. We're sure that software patents are a bad idea.
Some of the patent sites that had useful documents on them before have disappeared, so we are putting this information together on a web site and making it accessible. Collecting info about the EU campaigns, Bilski, etc. Putting a wiki online, English first and other languages later. Also doing a news site.
Make a platform so that other people can get active.
Hope to work with http://progfree.org/.
Software is not technical! We have to specify that when working in Europe to explain why it's not patentable.
