The sticking point is wording. No one seems to know what better wording there should be. So I thought it would be good if you brainiacs would please think about it and see if you can come up with any good suggestions. In order to do so effectively, we need to understand how the pro-software group thinks.

That process requires us to stop and really consider this question: Since the wording that was voted down is the problem, what is the solution? What wording would be better? Keeping in mind that there are many companies that want to have their "innovation" patented, I wonder if there is a way to come up with wording that lets them keep on doing things their old-fashioned way in their half of the universe, while protecting Free and Open Source software and letting it be free in its half at the same time? If you can actually come up with a solution, something both sides could live with, it's a practical way to resolve the problem. Perhaps there is no way, but until we've at least tried, how do we know?

So, in that spirit, here is a statement from EICTA, which calls itself "the voice of the Information and Communications Technology and Consumer Electronics Industry in Europe." By that they mean it is composed of 49 "major multinational companies" and 32 national associations from 24 European countries. In all, EICTA represents more than 10,000 companies all over Europe with more than 2 million employees and over EUR 200 billion in revenues. The proprietary IT world, in short, or some of it, anyway. If they've heard of GNU/Linux, they likely view it as a threat to their world, and I think you'll pick that up in the way EICTA expresses its disappointment that they didn't get a rubberstamping of the directive, so brace yourself for some over-the-top and, to us, offensive PR phrasing, but try to look beyond that and let's see what we find:

For Immediate Release

Industry condemns Council failure to support European high-tech innovation

EU Council of Ministers defers adoption of Common Position on proposed Directive on Patentability of Computer-Implemented Inventions

Brussels, 21 December 2004 -- EICTA, the voice of Europe's information and communications technology and consumer electronics industry has expressed extreme disappointment regarding today's decision by the Council to further postpone adoption of a Common Position on the proposed EU Directive on the Patentability of Computer-implemented Inventions (CII).

EICTA Director General Mark MacGann stated: "EICTA represents the 10,000 small, medium and large companies that work tirelessly to strengthen the competitiveness of the European Union. Council's failure today constitutes a worrying setback for innovation in Europe, and throws doubt on our collective commitment to the Lisbon Agenda."

We are dealing with legislation that was tabled by the Commission thirty months ago -- how long do governments need in order to create a stable and harmonised legal environment that supports innovation in the European Union? The last thing we need is an extension of the legal uncertainty. Each day that passes without a decision by Europe's policy makers to strengthen Europe's innovation and competitiveness is a further blow to the Lisbon Agenda.

Instead of becoming the world's most competitive knowledge-based economy by 2010, we run the risk of being caught up in a negative spiral where other regions of the world can take advantage of European investment in innovation, while European companies in their home markets are weakened by imitation. This will cause the loss of tens of thousands of jobs, first in European R&D and then throughout industry.

For further information, i.e. economic analysis, inventor reports and SME CII case studies please visit www.patents4innovation.org

I've often observed that when someone wishes to do something rapacious, like build a nuclear power plant next to a park or elementary school, they always promise the result will be jobs. I find it deeply offensive, but they probably find it works, appealing as it does, to human selfishness, which is invariably shortsighted. But if we try to pick our way around the emotion-charged wording , what is the man saying?

I hear him say that he's terrified of North America and Asia's growth compared to Europe's aging and low population growth, that Europe hasn't been spending enough on R & D so it is now behind and unable to compete, and that he imagines patents will fix those problems. If you think about patents as a way to strangle the competition without doing any work yourself, it makes a kind of twisted sense. You certainly don't need a large population to just open the envelopes and take out the checks. He mentions the Lisbon Agenda, which you can read about here, on the offensively named website, patents4innovation.org, and this is what it says about patents:

2. Protection of Intellectual Property

Maintaining European intellectual property (IP) protection must be a priority. Companies will only invest in innovation and R & D if there is an appropriate legal framework for the protection of intellectual property rights. Most urgently, the EU should adopt the pending proposal on the patenting of computer-implemented inventions, which reaffirms current practice that has served all stakeholders well.

The creation of a common European Community patent is also important. It should be accessible at low cost to Europe’s SMEs and academic institutions, as proposed by the Kok-report. The contentious language issues must be solved in a pragmatic way, so that the Community patent really does reduce the complexity, time and costs of protecting intellectual property.

I'm sure you can see right there that the author knows less than he should about what was this week called a cash cow, GNU/Linux. It simply isn't so that companies will only invest in "innovation" if there is "an appropriate legal framework" to protect IP rights. Maybe that used to be true in the dinasaur age. But this is now. And IBM, for one, has invested a great deal in software that comes to you under the GPL.

The question is, how to get folks who think like this to understand that there is now a choice, that the GNU/Linux train has left the station, and that they are not on it? Alternatively, how to keep them in their sandbox, happily trading patent licenses with each other like kids trading baseball cards, while the rest of the IT world carries on with FOSS? Is it the case that there is no way to keep both happy? To let the proprietary dudes stay in their little, dying world a little bit longer, as long as they leave us alone?

I'm seriously asking the question. I don't know the answer myself. All I know is, it's the right question.

I think it's obvious that they really can't expect to argue that FOSS should be killed off so they can keep doing things the old way. They do so argue, some of them, probably, but too many companies, individuals, and governments are involved now, and that simply isn't going to happen. So what about some wording? Is there a way to place FOSS in an exempt category? With some guarantee that it won't sue anyone for patent infringement? And no one is allowed to sue FOSS over patent infringement? I hear the pro-sw folks howling now. But if not that, then what would suit them? If it's the case that only one can survive, it's obvious it won't be proprietary software. But if they want to have an encumbered software industry, is there a way to let them do that and still leave the GPL in place for those that want that instead?

To drink in more of the opposition's point of view, here's an offensive headline, written just before Poland derailed what this IP attorney, Axel H. Horn, predicted was a done deal: "Anti-Patent Campaigners fail to understand EU Council Process." Really? How come it didn't get rubber stamped, in that case? I must compose myself. I despise people that argue by putdown. Let's pick our way around that headline, and here is his point of view, or it was his point of view the night before the vote:

Up to now it looks as if the Council of the European Union ("EU Council" for short) in its Agriculture and Fisheries Configuration is set to formally adopt the Draft Directive on the patentability of computer-implemented inventions (Document 11979/04) just tomorrow. There is a big deal of brouhaha amongst various groups of anti-patent campaigners concerning this step. They argue that in Europe, democracy is now in danger because of the EU Council is set to formally adopt the Draft Directive in its Agricultural and Fisheries configuration as an "A" item without a discussion, not in the Competitiveness configuration as a "B" item with a discussion. For example, Mr. Jan Wildeboer is quoted in Groklaw as follows: "[...] The situation in Europe concerning software patents is moving from democracy to anarchy. [...]" They are all missing the point. On the meeting tomorrow, the representatives of the EU Member States will not act as politicians (this is what they already had done in May earlier this year) but, so to say, more in a fashion like a notary public: They (or their Officials accompanying them on their trip to Brussels) will have to scrutinise whether or not the English text as tabled is identical with that one on which in May 2004 a political agreement was reached, and whether or not each of the bunch of Official translations of the Draft Directive into the various other Official languages of the EU is accurate. If both conditions are met, the EU Council will do right to formally rubber-stamp the political agreement reached earlier.

What a gulf between the two sides, is there not? He also presents a BBC article answering Bill Thompson's piece on how the EU directive would be a disaster for software developers, putting them at risk. He doesn't, oddly enough, provide a link to Mr. Thompson's article, but here it is. Thompson is a former programmer, now tech analyst, so he naturally understands the directive from the perspective of the programmer, particularly the FOSS developer. He writes that the law would be a disaster for the EU computer industry, would inevitably hold back innovation, as some programmers will have to check for patents or stop writing any code in competitive areas, and evenually will lead to the death of GNU/Linux:

"Many observers of the computing scene, including myself, think the results will be disastrous for small companies, innovative programmers and the free and open source software movement.

"It will let large companies patent all sorts of ideas and give legal force to those who want to limit their competitors' use of really obvious ideas. . . .

"A patent gives the owner the right to stop anyone else using their invention, even if the other person invented it separately. . . .If I sit down this afternoon and write a brilliant graphics compression routine and it happens to be the same as the LZW algorithm used in GIF files, then I am in trouble under patent law, at least in the US. Coincidence is no defence. . . .

"Much of the really useful software we use every day, programs like the Apache web server, the GNU/Linux operating system and the fearsomely popular Firefox browser, is developed outside company structures by people who do not have legal departments to check for patent infringements.

"The damage to software will not happen overnight, of course. If the directive goes through it has to be written into national laws and then there will be a steady stream of legal actions against small companies and open source products.

"Eventually someone will decide to attack Linux directly, probably with some secret funding from one or two large players."

He flat-out calls it a bad law. The BBC article On Horn's site you will find the statement by the UK organization, Intellect, expressing its disappointment the directive was not rubberstamped. Horn describes this group like this:

"Intellect is the trade body for the UK based information technology, telecommunications and electronics industry. Their 1,000 members employ more than 1.1 million people and make a huge contribution to the UK economy accounting for around 10% of GDP."

Jobs again. Power. We should be able to have what we want because we are companies that employ lots of people. But GNU/Linux provides employment too, and it will do so increasingly, which I don't think the proprietary side can assert with any confidence, but let's just leave that to the side. Here's their sobbing over the directive's failure to pass:

"Intellect, the trade association for the UK hi-tech industry has today voiced its dismay over the decision of the European Council to defer the adoption of the Common Position on the proposed EU Directive on the Patentability of Computer-implemented Inventions (CII).

"Intellect's Director General, John Higgins, said, 'Intellect cannot understand how the EU Council has managed to overlook the negative impact this lengthy, drawn out legislative process is having on the European Union, and within it the UK's, ability to incentivise and protect innovation.'

"'The Directive on Patentability of Computer-implemented inventions has the potential to shape the future of the UK’s hi-tech sector. Without it the UK's individual inventors, SMEs and large multinationals, will be unable to protect their inventions, undermining the incentives to undertake R&D, and creating a climate adverse to technology transfer. This is a situation which will put UK businesses at a distinct disadvantage within the global knowledge-driven economy, and one which Intellect and its members are determined to avoid.'

"'We call on the EU Council to put an end to this uncertainty, and to commit to a harmonised and reasonable approach to patent protection for computer-implemented inventions in Europe which maintains the current level of protection available to innovators. If Europe is to meet its Lisbon Agenda objectives then EU policy makers must do all they can to boost innovation and competitiveness. Adoption of the Common Position is a critical step in this process, and one which should not be delayed for a moment longer.'"

So relieve uncertainty, get protection or they won't do R & D, and boost innovation and competition. What am I forgetting? Oh, kill off free and open source software.