The European Parliament is debating a proposal to legalize software patents, and people like Richard Stallman and Larry Lessig are scheduled to speak against this project on a conference in Brussels next week.
Last week I did a reprint of something I wrote in March 2002 in opposition to the legislation plans.
Here are some short thoughts about how I see the question today.
1. Reasons for opposition to the proposal
a) The European Parliament should listen to the over 140.000 European citizens who have signed the petition against software patents.
b) Legalizing software patents will damage European economic interests. Most software patents are held by big American companies. Those will profit from license revenues, to be paid by European software developers.
c) There is no need to harmonize. All member states already have the same law in their books. If anything, having a directive and the European Patent Convention talking about software patents at the same time adds to the confusion around an already difficult problem.
d) Basically, patents are monopoly rights. Legalizing them for the software sector will obviously reduce competition there. This is incompatible with the strategic goal of the EU to become the most competitive and knowledge-based economy in the world.
It does not make much sense to abolish all monopolies in the telecommunication sector just to introduce a massive number of new monopoly rights in the sector most important for the "knowledge-based economy" a few years later.
e) The Draft Report says that the directive would not bring any new law, only clarify existing law (see amendment 7 to recital 14 on page 9). This is not true: The directive would legalize several ten thousand software patents which have already been issued illegally by the European Patent Office.
However, if that statement was actually true, again there would be no need for the directive. If it does not change anything, the only thing it does is add to the confusion.
2. The bright side
I am not sure if the opposition against software patents will succeed. Quite possibly the Commission proposal will be approved, maybe with some amendments.
I won't exactly celebrate when that happens. However, I think there might be a bright side even to that development. Consider the following points:
a) European lawyers will finally get their fair share in the world-wide software patent lawsuit action. That will provide great jobs for lawyers. The newly founded Munich Intellectual Property Law Center will get lots of applications for their 23.000 Euro LLM program.
b) The European software industry will need to change. Software development companies will fire programmers and hire lawyers instead. This will boost their ability to compete in the American market, since they will get used to working as law firms with small development teams attached, as is necessary with the software patent minefields poisoning the American markets.
c) If the critics of the plan to legalize software patents are right, we will see a huge mess coming from this unfortunate business in the years to come. This will lead to a nice little debate about abolishing patents altogether, since the disastrous effects of software patents will be clear to everyone, but the difference to traditional patents only to the experts. The TRIPS treaty will be no problem, since the U.S. lately nuked the system of international law: everyone else can feel free to ignore TRIPS if they want to abolish patents. Which by the way is one of the bright sides of the illegal war in Iraq.
d) Opposition to software patents on a worldwide scale will be easier to organize. With the present safe harbor from the damage caused by software patents in Europe, Europeans have less incentive to start fighting in earnest. FFII is doing a great job. But the opposition to software patents will become more important - and better funded - if even more projects get taken down and absurd, broad patents no one understands or wants to read get actually used in European patent lawsuits. Patent inflation increases the need for a strong backlash in the same way as spam inflation the need for a strong reaction.
e) Proposals for fighting against software patents even if the politicians don't get a clue and let the patent movement get away with patent inflation as discussed in my book "Grenzen des Patentwesens" will become more important. More people might want to read my book, or this blog for that matter. Great news for me.
3. Conclusion
I hope that the opposition to the directive proposal is successful. But if not, that won't be the end of this fight. It will begin in earnest. And even if the other side wins this time: Eventually people will become fed up with this abuse of the system and find an effective way of shutting it down worldwide.
Posted by Karl-Friedrich Lenz at April 29, 2003 07:51 PM | TrackBack