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The BSA Sends A Letter Re EU SW Patents
Saturday, June 18 2005 @ 02:28 PM EDT

As you know, the software patent debate is supposedly heading for closure, with an important JURI Committee vote Tuesday and a larger EU parliament vote in July. I gather the strategy by the pro patent side is to avoid a second reading at all costs, and that they are trying to avoid accepting any amendments to the CIID. Feel free to correct me, if I've misunderstood. Here's Reuter's description of what is going on:

As EU lawmakers head for a showdown over new rules on patenting inventions, a key vote next week reflects a lack of consensus -- an outcome that's seen as favoring big software developers. Member states and the European Parliament are looking at a bill on patenting inventions that use software. The legislature's legal affairs committee is due to debate the bill Monday and vote Tuesday.

Lawmakers have come under intense lobbying, reflecting a politically charged faultline in the world's software industry. Those who support open-source or free software say copyrighting is preferable to patenting, and welcome Rocard's stance, saying it will allow developers to enter markets that would otherwise be sealed by patents. Rocard wants a narrow approach to patenting, to effectively include only "programmable apparatus" or hardware applications such as an ABS braking system or a machine to pump insulin. But the member state version opted for a broad approach to patenting software-related innovations, pleasing large companies such as Nokia and Microsoft, which say this will stop copycat devices from countries like China. EICTA, which represents 51 major multinational companies, said Friday that lawmakers should reject Rocard's proposals and back what the member states have agreed on.

As they say, the lobbying is intense. Someone sent me a copy of a "Dear Patent Holder" letter the Business Software Alliance has just mailed to those they hope will help them fight for software patents, and it's clear from the letter, the BSA is worried about losing this battle.

Here's the letter, with my comments interspersed in purple text, so you can reach your own conclusions:

[BSA letterhead]

London
United Kingdom

14 June 2005

Dear CII patent holder,

I am writing to alert you to proposed European patent legislation that may directly impact you and your valuable intellectual property rights.

As you may have heard, the European Union is considering a new European law that relates to the patentability of computer-implemented inventions (the "CII Directive"). Patents for inventions that use software have long been available in Europe. Indeed, your company and thousands of other small- and medium-sized European enterprises hold such patents.

[So much for the myth that current law in the EU does not allow US-style patents.]

The proposed CII Directive was intended to codify and harmonise current European patent practice. Now, however, some interest groups are lobbying the European Parliament to change the proposed Directive with the stated goal of forbidding any patent on computer-implemented inventions altogether. Instead of making the patent system more responsive and affordable for SMEs, their focus is on robbing small businesses of the value of their intellectual property.

[The last is FUD, and quite untrue, as well as being offensive language. But notice that the BSA views the directive as making the patent system easier and cheaper for patent holders. And, as I understand the arguments the anti-software patent groups make, their concerns include real fear about the CIID's impact on Free and Open Source software, such as Linux, and the concern that it would make it harder, if not impossible, for it to even survive. The BSA does not even mention this serious issue -- do you want Linux to continue to be available to you or not?]

One reason these groups are succeeding is that Europe's patent holders, including SMEs, have not been as vocal as their opponents in defending their position with European policymakers. This leaves opponents of the CII Directive free to spread misinformation about CII patents, such as their assertion that only large corporations rely on such patents. Disgracefully, these groups even claim that the CII Directive was drafted by large corporations, an assertion that could not be further from the truth or more disrespectful of the European political process.

[This is funny. Who does the BSA represent? Who will the CIID benefit the most? The assertion that I have seen is that mainly US large corporations will benefit from the CIID. The letter does not contradict that assertion, I notice. Certainly, Microsoft has made no bones about wanting software patents in Europe. And they are not alone among large US corporations in that position. IBM is a member of the BSA also. However, there is a distinction, in that Microsoft is attacking Linux; IBM is trying to protect it by means of a patent commons.

What makes this letter so odd is that the BSA, according to FFII's website, published a study that found that only 20% of SMEs in Europe hold any of the identified European "computer-implemented invention" patents, that this figure has remained constant between 1998 and 2004, and that of those 20%, half are owned by US and Japanese enterprises. That puts the letter in a new light, doesn't it? The study opens with this:

"We wish to define computer-implemented inventions (usually referred to as 'software patents' in the United States)."

The FFII points out that this confirms what they have long said, that there is no inherent difference between US-style software patents and patents on "computer-implemented inventions" as granted by the EPO. You can read the study [PDF] for yourself.]

If you care as seriously as we do about preserving reasoned rules on patents, we invite you to take at least one simple step. Personalise the enclosed postcards and send them to the European Commission and to your elected representatives in the European Parliament -- as soon as possible. The European Parliament is considering this issue now -- in June and again at the beginning of July -- so speed is key.

[So, a message to the EU Parliament: if you get a lot of postcards that are identical in many respects, you will know now where they came from.]

You could do more, for example by writing a personalised letter to your elected representatives. Our on-line "toolkit" makes this easy. It contains a letter template as well as suggestions on other ways you can get involved in this important debate. Postal addresses for your elected representatives, as well as additional practical tools can also be found at www.bsa.org/patents.

Yours sincerely,

Francisco Mingorance
Director, Public Policy, BSA, Europe

According to FFII, Mr. Mingorance is a co-editor of a business-methods software patent proposal that was voted down, to his regret, in 2003. The link takes you to a story that tells us "most software patents are held by non-European companies."

But the main takeaway to me from this Dear Patent Holder letter is this: they must think the CIID is in trouble to send such a letter. You can also read the letter [PDF] they sent to the EU Commission, offering various reform proposals to make the CIID more attractive, I suppose, to anyone still sitting on the fence. Significantly, on this BSA page on what is happening in Brussels, they say this:

Now, however, some interest groups are lobbying the European Parliament to change the proposed Directive with the stated goal of forbidding any patent on computer-implemented inventions altogether. To this end, they have put forth a great deal of misinformation about the patent system in general, and about CII patents more specifically.

Because these issues can be complex, much of this misinformation is being accepted as truth. For example, some policymakers now believe that patents impede innovation and thus that broad categories of inventions should be excluded from patentability.

I believe patents do impede innovation in the software context. Patents are a monopoly on ideas, after all. And judging by this letter, I'd say misinformation is available from the pro software patents side. The cynic in me thinks the BSA coalition will win, by fair means or foul. But they themselves do seem to believe at this point that this is a real horse race, and that, to their surprise, they may not be riding on the winning pony.

The Dutch government, in a report presented to the Dutch parliament recently, and now being circulated to other EU member states, says the software patent directive should be put on hold for five years, while issues get defined and sorted out better. They also think there is no way to separate patentable and unpatentable software. It's all or nothing, in their view, and they'd like all, but with tweaks to the patent system to reform it so that stupid patents don't get granted. Good luck with that.

So, rather than trying to get the directive to resolve all the issues, they suggest resolving patent reform issues and then swing back around later, when such arguments can't be made presumably by opponents of the directive. Frankly, it sounds like they are afraid there will be a no-software-patents decision, and they'd prefer the status quo to that.

I think 5 years off is a grand idea, since the EU suggests giving Microsoft a gift, 5-year breather on allowing FOSS to interoperate with them in the server space. It makes the playing field a little more even, don't you think? Let's all have 5 years off. Just kidding. Sort of. Actually, I think software and patents need to get a divorce. And stay away from each other.

You can read the Dutch message here or read FFII's English translation.


  


The BSA Sends A Letter Re EU SW Patents | 184 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here please
Authored by: tiger99 on Saturday, June 18 2005 @ 02:42 PM EDT
If any.

[ Reply to This | # ]

OT Here please...
Authored by: tiger99 on Saturday, June 18 2005 @ 02:44 PM EDT
And please do try to make clickble links, when referencing things anywhere on
the web, including previous Groklaw articles.

[ Reply to This | # ]

Francisco Mingorance?
Authored by: tiger99 on Saturday, June 18 2005 @ 02:59 PM EDT
At thge risk of being moderated by PJ for being rude, I wonder if that is a typo, and it shoud read Francisco M. Ignorance?

:-)

He is certainly ignorant, or a liar, or a paid shill, or any combination of these.

[ Reply to This | # ]

BSA = M$ lackey ??
Authored by: Anonymous on Saturday, June 18 2005 @ 03:06 PM EDT
Lots of articles point out the BSA to be, well, basically, Micro$softs lackey.

Also, could M$, a few other large American companies and the U.S. be in to it
together?

I mean, the software patent draft such as it is, definitely will benefit
American companies. Not adopting a European constitution (regardless of whether
you consider it a good constitution or not) burdens Europe and therefore
benefits America. So, in both cases, America 'wins' ?



[ Reply to This | # ]

The BSA Sends A Letter Re EU SW Patents
Authored by: blacklight on Saturday, June 18 2005 @ 03:47 PM EDT
My observation to date is that the BSA and its ilk, which really represent the
large well-financed corporations, invariably justify their support of software
patents by purportedly speaking on behalf of SME's - that is, the very SMEs
whose competition they are trying to crush. It's like colonialists claiming to
represent the colonized, criminals claiming to represent their victims and the
Sudanese "government" claiming to speak for its victims in Darfur.
Shameless, amoral and cynical. But then what would we not do, if we were greedy?

[ Reply to This | # ]

The EU is crashing anyway
Authored by: Nick_UK on Saturday, June 18 2005 @ 04:00 PM EDT
After the NO votes by France and Holland (countries brave
enough to actually have a vote on Europe), the EU is now a
farce, being fought by politicians alone.

Politicians have their own order of what they want - it
depends who pays them.

Bliar in the UK is a great example of this. He will not
allow a vote on the EU until he is sure that there is so
much apathy within the voters the Government will win.
Why they want to win, I don't know, and not one of them
can put forward an argument to support it.

Remember. Politicians have no ethics. The bigger the
payer, the better the result.

Nick

[ Reply to This | # ]

Not to mention BSA's proud support of parenting
Authored by: kawabago on Saturday, June 18 2005 @ 04:40 PM EDT
We shouldn't forget the BSA's proud support of the Walt Disney Copyright Prison
for Children. That's right. The US federal government has been building a
special prison to hold copyright infringers so you can bet it will have a wing
for children!

Or is that just too cynical?

---
The only thing that really matters is you.

[ Reply to This | # ]

Look to History
Authored by: TomWiles on Saturday, June 18 2005 @ 04:49 PM EDT
Intellectual arguments get us nowhere. Look to history if you want answers.

The founding fathers of the United States did not recognize European patents
because they realized that these patents were killing innovation in Europe.
Where they put a patent and copyright system in place it had real restrictions
on it at the time. 90% of authors did not bother to copyright their works
because there was not benefit. Patents were extremely short term which allowed
innovation to flow into the commons with a maximum velocity. Thomas Jefferson
ran the Copyright (and patent??) office for many years and guaranteed that
intellectual property would not be abused.

The fact that the US did not recognize European patents resulted in a steady
stream of bright, frustrated engineers emegrating from Europe (where they could
not innovate) to the US.

Look at what happened. The US grew from a backward, agrarian colony to the
world's largest industrial power in a little over 100 years. The driving force
behind that growth was the refusial of the US to recognize the opressive
European patent system.

Unfortunately the men who built the US industrial economy have died out, and
they have been replaced by men who are attempted to defend their inherited
wealth with a legal system similar the the legal system in Europe that failed
150 years ago.

I am beginnng th think the we do not learn from history, and we do NOT get
smarter.

Tom

[ Reply to This | # ]

The BSA do great work...
Authored by: Naich on Saturday, June 18 2005 @ 05:25 PM EDT
Like producing reports that count Linux installs as pirated software. Who could argue with such an upstanding organisation?

Link

[ Reply to This | # ]

"Patents Commons"
Authored by: dcarrera on Saturday, June 18 2005 @ 06:25 PM EDT
I'm sorry, but IBM's "patents commons" is a big joke. Worse, it's a
clever PR move which has practically zero benefit for Free Software, while
convincing everyone that IBM is "on our side".

1) We're not any safer today.

Saying the won't sue FOSS over those 500 patents is like having 100 grenades and
saying "I won't kill you with *this* grenade", while I continue to get
a new grenade every month. It doesn't even count as a step forward, because IBM
gets 500 patents in a month. So any reduction in the number of patents that
could hurt us was more than lost in a matter of weeks.

2) Those patents don't help you write software.

If you actually *read* those patents, you'll see how throughly useless they are.
Even if you don't count the patents that aren't even about software (e.g. the
one about safety screws) and stick to the software ones, they are completely
useless. Reading a patent about a color-picker dialog does not help me create a
color-picker dialog, and it doesn't make it any safer to make a color-picker
dialog because of all the other things that go into actually writing the
software. People who are not coders seem to miss this point often. Those patents
do not help you make software at all. Not even one tiny bit.

It's not just a matter of vagueness. Even if you found a non-vague non-trivial
software patent (I doubt those are even possible) it still would be next to
useless in actually writing software. The only thing that could help meaninfully
is looking at working code. And when you have that, you fall in the region of
copyright.

3) These patents do distract us from the real threat.

The only real effect of this patent release is that it creates a lot of
good-will. It makes people feel that IBM cares about FOSS, they're our friend,
and they'll use software patents to help us. By implication, that it's OK for
IBM to push for software patents, and software patents are not quite so bad.


In brief, IBM gave us a meaningfless present, and in return they greatly
weakened the momentum against software patents in Europe. They retained all
their ability to criple competitors through software patents, and even their
ability to criple any present or future FOSS project, if it were to harm their
ability to make money. And they gained the alegiance of those who would
otherwise have been fighting agianst software patents and in favour of the small
enterprise.

I am worried. I am afraid. I am honestly scared about the future. I see software
patents extending their reach. I see small businesses and individuals losing
their ability to compete against large companies who produce little, and sue a
lot. I see a major block to the flow of information, and the creation of new
knowledge. And I see a dormant community convinced that they can trust a large
company to care for their rights, and convinced that this company's interests
will always be in line with their own.

Sincerely,
Daniel Carrera.
OpenOffice.org volunteer.

---
Make a difference. Join OpenOffice.org. Join OOoAuthors today.
http://oooauthors.org

[ Reply to This | # ]

Ocham's Razor
Authored by: overshoot on Saturday, June 18 2005 @ 06:30 PM EDT
they all primarily do the same thing; let politicians know that any re-election funds ("support for the Candidate") are jeopardised by an "incorrect" stance on the issue at interest.

It's even easier than that: they do a huge amount of the work that legislators and their staffs are responsible for, thus leaving the officials free to do other things. Since their workloads are high even without actually doring research or drafting legislation, this is a tremendous favor.

And, no, I'm not being sarcastic. Most of the time the lobbyists are honestly helping out. That's why they're trusted enough to slide in the little ones that they really care about now and then.

[ Reply to This | # ]

Does the BSA tell the EU ?
Authored by: Anonymous on Saturday, June 18 2005 @ 08:22 PM EDT
A number of member states have been fighting against this directive. The BSA can
say whatever they wish, the BSA, is not the law that the EU must follow. Have
any US corporations, made any difference in the EU to date, any change in the EU
economic problems; why should the EU follow these corporations now ?. If the
only reason the EU should follow along with these corporations, is because
patents would bring in much needed dollars, that answer to the EU's problem(s)
will be a short lived one. The EU does not believe the money paid for patents
in the EU, will make friends !., I hope not.



[ Reply to This | # ]

Microsoft's So-Called Indemnification
Authored by: darkonc on Saturday, June 18 2005 @ 08:47 PM EDT
Microsoft includes an indemnification program, but it only protects you under certain circomstances Including:
Our obligations will not apply to the extent that the claim or adverse final judgment is based on:
(i) your running of the covered software after we notify you to discontinue running due to such a claim;
....
My face-of-it reading of this requirement is that, should you be sued on the basis of a patent infringement claim in a piece of MS software critical to your infrastructure, Microsoft could quietly tell yoo to abandon that piece of software.
If you don't abandon that MS software, at Microsoft's insistence, then you would face the possibility of, not only losing your indemnity coverage, but being sued by both the patent holder (for patent infringement), and Microsoft (for violating the terms or their EULA). This requirement to abandon your infrastructure could also come from Microsoft if they are informed of (the possibility of) litigation or a threat against some other random MS customer in another corner of the world.

I don't know about you, but this could actually turn out to be worse than no indemnification program at all.

Am I missing something here?

---
Powerful, committed communication. Touching the jewel within each person and bringing it to life..

[ Reply to This | # ]

FFII publishes working paper, calls for discussions within EPP
Authored by: Anonymous on Saturday, June 18 2005 @ 09:14 PM EDT

18th June 2005 -- FFII has published a discussion paper which attempts to help parliamentarians of the European People's Party (EPP) to open up a discussion. The paper "Software Patents: How to achieve the aims of the 'Common Position' - Options and Compromise Potential", addresses popular misconceptions on the software patents directive, misconceptions unfortunately also found within the EPP. The 'Common Position' of May 2004 is often presented as a way to prevent patents on software and business methods. The FFII agrees with this stated aim of the 'Common Position', and shows in the paper that the content is radically different from the packaging. The paper also explains how computer tomography can be patented under the "Ten Clarifications", i.e. under the essential rules which represent the common sense of patent law in Europe that the European Parliament reestablished in 2003, and which have since then been subject to untruthful attacks by patent lawyers of large corporations such as Siemens.

The paper is already available in three languages, further translations are under way. FFII calls on its supporters to carefully read this paper and gain more friends for it within EPP during the upcoming two weeks in the final run-up to the plenary vote of 5th of July.

The discussion paper........... wiki.ffii.org

A good response by FFII to the BSA's postcards?

Some politician's are rumoured to be listening to their constituents in Europe just at this moment.

:)

Brian S.

[ Reply to This | # ]

"BSA disgusted with critiques of their inflammatory piracy loss methodology"
Authored by: Anonymous on Saturday, June 18 2005 @ 09:47 PM EDT

Back in May El Ericisan reported on the BSA's report claiming a US$4 billion increase in piracy world-wide, and their startling claim that more than a third of software on PCs is pirated. BSA Regional Director Jeffrey Hardee surprised many when he quipped, "If you can afford the hardware, you can afford the software." In a world with US$300 PCs, I'm not so sure.

Unbeknownst to us at the time, The Economist met the BSA's claim with a dash of scrutiny, and published a short but scathing article, "BSA or just BS?" (subscription required to read, or you can watch an ad to get a day pass)....... arstechnica

Highly entertaining rebuttle of the BSA's statistics. They were so upset, they wrote to the editor with a response so full of hurt? it's even funnier.

Brian S.

[ Reply to This | # ]

  • Corrections - Authored by: webster on Saturday, June 18 2005 @ 10:28 PM EDT
    • "rebuttle" - Authored by: johan on Sunday, June 19 2005 @ 12:07 AM EDT
      • "rebuttle" - Authored by: Anonymous on Sunday, June 19 2005 @ 12:53 AM EDT
June 29th 2005 - Conference in the European Parliament (Brussels)
Authored by: Erwan on Sunday, June 19 2005 @ 03:24 AM EDT
http://www.economic-majority .com/konf050629/
The Economic Majority Against Software Patents is an initiative from the FFII to get support from european businesses.
They are holding a conference the 29th of June in Brussels. Support from small businesses is vital now. I am not sure the conference is open to european citizen (as opposed to business representatives).
If you feel like visiting Brussels to help the FFII against software patents, 29th of June is the day.

---
Erwan

[ Reply to This | # ]

Warning! DON'T USE THE LETTER TEMPLATES OR POSTCARDS
Authored by: Ian Al on Sunday, June 19 2005 @ 03:59 AM EDT
All of these items are copyright and there is no licence given to use them. You
could find yourself defendant in another BSA litigation.

---
Regards
Ian Al

[ Reply to This | # ]

The BSA in copy violation
Authored by: Anonymous on Sunday, June 19 2005 @ 07:23 AM EDT
It looks like the BSA has copied this letter from the FFII,
or at least used it as a template.
But there is one beautiful mistake in there letter.

I'm pretty sure 99% of thies letters are addressed to
company's, and as fare is i know company's don't have:
>to your elected representatives in the European Parliament.
as mentioned there letter.

So here is my advice; sent those cards to:
Aan de Minister van Economische Zaken
mr. L.J. Brinkhorst
Postbus 20101
2500 EC 's-Gravenhage

He is still the one who will do anything for some attention.

/Arthur

[ Reply to This | # ]

The BSA Sends A Letter Re EU SW Patents
Authored by: Anonymous on Monday, June 20 2005 @ 03:49 PM EDT

What amazes me about the BSA (and Microsoft for that matter) is the way they throw "statistics" around making obviously false claims about FOSS and its developers with no-one batting an eyelid.

Surely, a claim that anti-patent protesters are out to get SMEs is an act of deliberate libel. FUD seems to be a word that has replaced another word that means making false claims for personal gain i.e. fraud. No study or scientific paper would be accepted unless the methodology involved was stricly documented and published so why should anyone give any credence to "get the facts" or the BSA's piracy figures? OK, so no company in its right mind would say "well actually the competition is better than us" and they all say "our product is best" but saying "hey, this lot are just a bunch of commie amateurs that are out to bankrupt western civilisation" in writing leaves them open to some come back particularly considering that many FOSS developers are individuals and not part of a corporate entity.

Does the FOSS legal fund cover libel? Does anyone out there want a written and hopefully humiliating public apology from the BSA? Can the provable, deliberate manipulation of benchmarks be counted as an act of dishonesty worthy of a court hearing and being dragged through the press. It would be nice to think so.

[ Reply to This | # ]

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