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Report on EU Software Patents
Monday, December 20 2004 @ 06:22 AM EST

Jan Wildeboer sends news from the EU software patents front. I'm sure you've been reading some gloomy news already ("The controversial EU directive that opponents fear will allow software patenting within Europe will be passed without vote or debate on Monday."), but his report makes it sound like it's not over yet, despite what appears to be a slick trick on the part of the pro-patent forces. It seems they are terrified of an honest vote.

Meanwhile, Linux is growing. IDC calls it a cash cow, saying it is now predicted to ring up $35B in revenues by 2008. Doesn't Europe wish to benefit from a cash cow? Don't they realize they are endangering GNU/Linux by adopting software patents, and for whose benefit? EU companies? Or American companies? And if there is Linux anywhere, countries that don't allow it to flourish will be bested by those that adopt it readily. Like Argentina, for example, where 42% of all businesses are now running Linux.

Here's another angle to consider. There is a rave review [sub req'd -- or here] of the Open Source browser Firefox in the New York Times, and it particularly highlights the security aspects of the browser, comparing Microsoft's Internet Explorer unfavorably, which for the first time is losing market share. There have been 10 million downloads of Firefox so far in a month. People are clamoring for something better. If you didn't get to see the Firefox ad in the New York Times Thursday, with the 10,000 names of all the volunteers who developed and/or contributed money to Firefox, you can get a peek here.

But suppose Microsoft goes digging about and finds some plausible-sounding patent it feels it can use as a way to stop Firefox? Let's imagine for a moment that it succeeds in forcing Firefox to disappear, maybe even just by threatening a lawsuit that the nonprofit organization behind Firefox, the Mozilla Foundation, can't afford to fight. That's what patents can do, you know. Then the world would be forced to return to a browser millions view as second-rate, less desirable and less secure.

Don't you think software is too important in today's world, and security in software too vital, to leave Microsoft the kind of power software patents can give? They came up with ActiveX, after all. Of course, perhaps Europeans parliamentarians enjoy having their hard drives erased against their will and other security hijinks only IE users get to experience.

Here are some links to bring you up-to-date on what is going on in the EU:

  • -- "During the meeting of the Council of Ministers next Tuesday the agreement on the directive "On the Patentability of Computer-Implemented Inventions" is scheduled to be officially adopted. The Ministers of Agriculture and Fisheries of each EU member state will represent their country there. The directive in its current form would pave the way for software patents."

  • -- "Reports from various sources have now confirmed that COREPER (the Committee of Permanent Representatives, i.e. the committee of the ambassadors of the member states to the EU) yesterday, on December 15th, approved the proposed Common Position of the Council on a software patent directive. Here's some quick facts:

    "The formal next step is for the Council itself to adopt its 'Common Position'. COREPER is only a diplomatic group but doesn't take the formal decision. The actual formalization occurs at a meeting at the level of the ministers (or their duly appointed deputies). There will be no more debate or vote. Since COREPER established that no one opposes the adoption, the proposal will only be mentioned in the minutes of an upcoming Council meeting (most likely at the Agricultures and Fisheries Council meeting on the 21st and 22nd). It will be adopted that way simply because no one protests when the chairman of the meeting mentions it. It's passive unanimity, or unanimous passivity, whichever way you want.

    "If the formal decision is outstanding, could there still be a last-minute change? In theory, any single country could stand up before or even in the respective Council meeting and demand rediscussion. That request could only be denied if the Council takes a qualified majority decision against it. However, in practical terms, there's no question that this is a done deal at the level of the Council. If anybody had absolutely wanted to reopen the discussion, then it would have occurred by now."

And here is Jan's account:

"The situation in Europe concerning software patents is moving from democracy to anarchy. The European Council, which has to formally adopt the directive about software patents, is doing everything possible to get a decision in 2004. Normally this would be handled by the Competition Council, but as this council will not meet this year now, the Agricultural und Fishery Council is expected to decide on Tuesday.

"Normally the parliaments of European countries play a vital role in such a co-decision procedure. The Dutch Parliament told their government: 'Abstain', the German Parliament told their government 'Reconsider', the Polish government said 'No', other countries (Hungary, Spain, Austria) also declared that they want more discussion and changes. Yet the Council thinks it does not have to take these opinions in account.

"At the first of November, the Nice treaty came into effect, changing voting weights in the Council. A qualified majority now does not exist anymore. But the Council states that it is not important, as there will be no vote, just rubber-stamping.

"Smelling like fish? Indeed. According to Dr. Karl-Friedrich Lenz a professor of European and German rights at Aoyama Gakuin University Law School in Tokyo:

Ms. van Gennip is the Dutch Secretary of State of Economical Affairs. According to this EDRI report, she declared to the Dutch Parliament that

Since there will be no vote on the A-item the Netherlands don't have to abstain from voting.

If there will be no vote, how exactly is the proposal supposed to receive 'approval without discussion' as stated in Article 3 Paragraph 6 as the meaning of 'Part A' items?

If there is no vote, there is no approval. 'Part A' means 'without discussion', not 'without vote'. And using this as an excuse for acting against the declared will of the Dutch Parliament is rather weird. . . .

Of course this hotly contested issue needs to be voted on, even if there is 'no discussion' on the vote. If it is not, then there is no basis whatsoever for assuming that the Council has 'formally adopted' anything.

And it takes only one Member State to force a vote anyway (Article 3 Paragraph 8). . . . 'Approval without vote' is a deeply disturbing perversion of democratic principles, and logically impossible as well.

"As the Council is preparing to let its Agriculture or Environment ministries adopt a software patent directive text for which no qualified majority exists, the Internet community is mobilizing.

"The Dutch Presidency's maneuvering in the European Council is seen by many not only as an attempt to push through an extremely harmful directive text but also as a violation of procedural rules of the EU Council and a critical test case for democracy in the EU."

Florian Mueller presents the last piece, what happens now, in his view?

"What can the European Parliament do with this proposal? The first decision that the EP will take is whether to follow the standard path and have a second reading on the basis of the Council's Common Position or to restart the entire legislative process. That is a possibility under certain circumstances, such as new eelctions and (which is arguably also the case here) after the nature of the problem with which the directive is concerned has substantially changed. For instance, the patent-related threats of Microsoft against Asian governments that plan to use Linux are a major new development that needs to be taken into account when deciding on this legislation. Some other, equally or even more important, things have also occurred in recent months.

"If the European Parliament doesn't restart the process, then this goes into a second reading. The second reading would have a timeline of 3 months, which can be extended to 4, but that's the absolute limit. If the EP wants to reject or amend the Council's Common Position, it needs an absolute majority of its members for a rejection or for each and every single amendment. So all abstentions and absences effectively count in favor of the Council in a second reading. Therefore, the requirement may be to get around 70% of MEPs present in the chamber on the respective day to take a decision. If the EP can't take a decision to reject or amend the proposal, then the Common Position takes effect. If the EP rejects it, then the legislative process is terminated without a result (and could be restarted later). If the EP makes amendments, then the Council has to decide whether to accept the amendments (in which case the amended Common Position takes effect) or to go into a conciliation proceeding. After conciliation, there would be a third reading in either institution to approve the outcome of the conciliation proceeding. A qualified majority of the Council and a majority of the votes cast in the EP would have to approve the outcome of the conciliation proceeding. Failing any of that, the legislative process ends without a result."

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