(beginning missing. A=audience)
.. is a relatively new sideshow for me. My PHd focussed on electronic publications and copyright and I did it, started in 1994, and so I observed the revolution so to speak of the Internet. I am a self employed consultant and copyright is my real area of expertise. I advise people on lots of aspects of publication both traditional and all the various things to to with electronic publications such as digital object identifiers, PDF files, data protection, that sort of thing.
John approached me at Christmas to talk on the European Software Patent Directive and I have to say I'm really glad that I got involved in this simply because in my work I meet artists, writers, publishers, dramatists, film makers, television producers, but I never work directly with software writers. This is a great shame because I personally have lots and lots of questions about software and intellectual property.
Just to say at the outset, I'll try to distinguish what I'm saying when I'm actually explaining the law which are facts, and then I'll try to make my opinions clear and distinguish between the two. I too am very opposed to the European Union's proposed Directive on Software Patents, not only because it is bad for open source software writers, but because I think it's bad for small entrepreneurs and I have learned over the years that most recent intellectual property legislation certainly in the area of copyright and probably in the area of trademarks is very very, don't believe a word of the rhetoric, it's very very very bad for small entrepreneurs.
I have a special interest, like many of us do, in seeing Scarborough reinvent itself economically and I am a firm believer that new technology is the way for Scarborough to become healthier economically. I'm opposed to the widening of the A64 (laughing).
I see how recent intellectual property laws both nationally and internationally work against small entrepreneurs, some of whom are in this room, should be encouraged. I'm going to talk and give some examples of how it's very suppressive of any small enterprise.
I also think it's not very good for creators, despite the rhetoric. It tends to support big business. So what I'm going to do is, oh, the third reason I'm opposed to the directive is it's yet another layer of protection and it's very very very confusing. It's not just confusing for the general citizen, or general software developer, it's very very confusing for experts. Senior judges in Britain are complaining like crazy that it's impossible to tell what some of the directives mean as they come into UK law. This we don't need. We need laws that are very very clear.
So what I'm going to do is do a little update on the status of the directive, and then I want to look at the status of software within the whole IP (intellectual property) framework, look a bit more at the clauses in the directive and give some specific reasons why it's bad for open source. Then I've got a few questions for you and we can discuss.
Thanks to John for asking me because I've been observing and I hope you have too, there's been a great great political drama going on over the past six weeks which was playing out as late as yesterday. The directive was sent back to the parliament after Poland and Denmark refused to play along in this Fisheries Committee. The way the European Union works is, amazing, but basically the Commission proposes laws and then they're actually passed in a dual resolution manner by the Council of Ministers and the Parliament and it kind of bounces back and forth between the two, but ultimately the Parliament passes the directive
(missed a short bit)
do no favour adopting the directive in its present form, Poland and Denmark have said they won't go along with it at all, so Parliament, instead of sending it for a second reading because it wasn't going to pass, Parliament asked the Commission to redraft the directive which is very very draconian step indeed politically. The Commission, I saw last night, declined to do so, they said it would just take us too long, too many political hurdles, I mean they must also be very frightened of big business, so it looks like the directive is set to stagnate in small committees probably within Parliament, possibly be defeated, but I warn you, it's not going to go away. It'll come back to haunt all of us, and to pester all of us.
Secondly, the problem is still here for open source developers and all of us concerned about this issue because in fact the European Patent Office and the UK Patent Office have been, for the last thirty years, increasingly, granting patents to computer implemented inventions, ie. software, and it seems to me that, I mean there are inconsistent standards among nations of the European Union, and it seems to me that the problem is still with groups, open source groups, there's still a great great need for a lot of political involvement in keeping up to date. The organisations lobbying for software patents in the European Union are very very formidable lobbyists, and so keep worrying.
The UK Patents Office' response has been to, after this series of defeats that have taken place in the last six weeks .. the Patent Office, the government really, has backtracked a bit, and instead of push push pushing for the directive and why this will solve everything, has backtracked a bit and has offered invitations to workshops on how, and I quote from them, "how to define the contentious border between patentable and non-patentable software related inventions". I notice from their website that you had to register by February 18, but has anybody registered to attend the workshops? Basically they've asked software developers to come to six or seven places in the UK, I think Bolton is the closest place, which is not close, because Lord Sainsbury has promised them, because they seem to be agreeing that they really don't know what this term, what is a "technical contribution" .. to be patentable a software, a claim for patent must make a technical contribution, and I'll come and explain these terms in a bit.
Their previous responses, they were very gung-ho on the directive as proposed by the Council in last May with the help of Ireland. The rhetoric to me sounded very very like New Labour rhetoric on expanding gambling, which is that people will gamble less if there are super casinos and certainly on 24 hour drinking, that somehow local authorities can really control this and because there's 24 hour drinking people will drink less. They said well, standards are inconsistent so if we increase the scope, extend the scope of copyright, then we won't have nasty things that happen in the US, ie. business methods and all software patents. It didn't make any sense to me.
What is the status of software in the intellectual property framework? I would characterise it as being very uncomfortable. My own opinion is that the legal experts who propose legislation, when software started to be around in the fifties, sixties and seventies, they didn't know anything, they were technologically very ignorant. They felt they had to get it into a framework and my own opinion is that it's never been dealt with properly.
There are three essential forms of intellectual property, copyright, trademarks and patents. Copyright is vested in a work and it grants the copyright owner a negative right. The copyright owner can prevent people from copying, adapting, issuing copies to the public, communicating to the public, and a whole range of rights. Trade marks, a graphic representation which distinguishes the goods or services of one enterprise from another, Coca Cola, Theakstons, that sort of thing. A patent is a legal document which grants the patentee a monopoly for twenty years over their invention, to completely control its every use.
It's really really important to, in your everyday work, I would advise you, if you come across any problems with copyright or patents or anything, is don't confuse US law with UK law, and don't confuse UK, remember that nations within, just because there are these copyright and patent directives that the European Union has issues, it doesn't mean that all the laws are the same, so UK law is very different from German law. The most important law to know is UK law. What it does is when a directive is passed by the parliament, it brings it into UK law and sometimes it ignores whole aspects of the directive. Again, not everything flows from the US. The European Union has pushed very very hard for quite radical strengthening of intellectual property laws. They were the ones that did the first extension of the term of copyright, and then the US had to follow for competition's sake
A. what is that?
the term is ridiculous considering, if you're looking at software, if you're looking at anything it's ridiculously long, it is seventy years after the death of the creator of the work. So if you just wrote a little program today it is not when you die, it is seventy years after you die, so it's not just your grandchildren, but it's your great great grandchildren at least, and given the nature of software in my opinion this is very very inappropriate and in fact I think it's inappropriate for any creative work, but as everybody points out the Walt Disney corporation did a lot of lobbying for the laws to be changed both here and in the US.
As far as patents go, the US, a number of years ago, in the US, almost all software can be patented now as long as it is novel, that's the only qualification. As well as business methods, and you've probably already read about this. The Patents Office is overwhelmed in the US, there are millions of trivial patents, it takes forever to get a patent granted, and the big companies as you know put in thousands and thousands and thousands of patent applications per year. It is a mess, and stifles innovation.
This is not so in the European Patent Convention area, or in the UK. Back in the seventies and early eighties computer programs were judged to be literary works, because they were written down, and they were thus eligable for copyright protection. So, copyright acts here were amended and then there was a copyright directive in 1991 but the UK had already given computer programs copyright protection, and that means that, as creators, you must authorise, unless you use a creative commons licence, people can't copy or adapt or issue copies to the public of a computer program without your authorisation. There are two exceptions in the law, and that's that backup copies may be made, and decompilation may take place without the author's permission. Also, on any other work, you face a criminal penalty for circumventing technical protection measures, but not on a computer program, because you can't do decompilation unless, or make a backup copy, unless you destroy the technical protection mechanism, you have to break into it. As I say, the term is authors life plus seventy years. It's not suitable.
There is no registration for copyright. Copyright arises the moment you write it, it is under copyright as soon as, but it must be expressed.
Patent is different. It's a legal document between the state and an inventor which gives the entity which applies for the patent, which is often a large company not the actual inventor, a twenty year monopoly on the use of the patent. Patents have a very long history in the UK, the first was issued in 1300, and it was the way the King gave certain manufacturers or inventors or producers monopolies, and gave certain printers, for example, monopolies to print the bible. Henry VIII and Elizabeth were particularly clever using patents to control, actually, it's censorship. Then of course parliament took over and so it's a deal really between the state and an inventor.
The 1977 UK Patents Act is what we work under and it was drafted to conform to what is known as the European Patents Convention. If you apply for a patent you either apply in the UK and if your claim is successful you get a UK patent, or you go to the European Patent Office and you specify which countries you wish, within the convention area, which is slightly larger than the European Union, which countries you want patent protection from. Patents have to be applied for and registered and published, and it is a very very very expensive business. It's the most expensive form of intellectual property. Again, I think it works against small entrepreneurs.
There's no definition of invention, in the 1977 act, nor in any of the European patent conventions, but there are some qualifications. The result of the invention must be a product or a process that are new, that involve an inventive step, and they must have industrial application.
By the way, I don't know how many of you have read Dickens, but patents were really, this isn't the only era in which patents are angry about patents, but the Victorians were furious about them. There was a lot of corruption in granting patents and Dickens wrote a funny story about, kind of like Bleak House, a long long effort to get a patent. The Victorians felt that it hampered the Industrial Revolution, and that inventions were there for the good of society.
The legal experts stress that one of the benefits of the patents system is that the patent has to be published, so that technical and scientific information can be spread. But on the other hand, you can't use the patent without the patent owner's permission, without a licence.
Computer programs "as such", and that's an important phrase, were excluded from patentability along with things like mathematical formulae and business methods, aesthetic creations, data presentation. However the problem is that in effect this has not meant anything because the last thirty years, both the European Patent Office and the UK Patent Office have, in effect, been granting patents to software, or as they call them, "computer implemented inventions". Thousands and thousands and thousands have been granted, and when these are brought, contentious decisions and contentious claims, are brought before the courts, the courts have asked, and I'm back to technical contribution, have asked this very crucial question, which is, is the invention technical, or does it make a technical contribution to the state of the art. So, it is true that a computer program in and of itself cannot be patented. But, if it results in a product or a process, it can. Many judges have said a physical change is necessary and they point to the computer program that was written to make a robots arm move, that was patented, they said that was correct. There must be technical effects as a result, or in the actual solution.
This isn't, by the way, altogether clear to me (general laughing), I'm glad I'm .. and therefore
A. If it prints something out, surely that's a physical thing
there are vast books on this, and lots and lots of court cases, but basically the dam has broken over the last thirty years, and software businesses have grown enormously and what has happened is there is inconsistency in applying these distinctions among the nations, the member states of the European Union, so the European Commission proposed a directive as early as 2002, basically Parliament didn't like it and inserted exceptions for open source software. These are exceptions to infringement. So you could not be taken to court for a patent infringement if you were part of open source development. Of course, it didn't mean you could blatantly go out and pinch everything, but there were exceptions so that open source software could continue developing.
The Council of Ministers, led by Ireland, and by the way there's been a lot of stuff on the web about Ireland, which is a tax haven for Microsoft, has huge amount of its annual revenues from Microsoft, and that McGreevy, who is president of the council, pushed through the so called compromise position and removed, deleted all the exceptions. If you look this up on the web, the No Software Patents movement or one of the Linux websites or the Free Software Alliance ('editors' note: a google for that brought up this where I remember it being this, so not sure what's going on there, perhaps the FFII would be a better link), you can read some of this stuff, Ireland is in the hands of Microsoft.
What the directive basically said is that, we've got to have harmonisation in Europe, and that all this business about "we're not going the US way", and "we don't want patents of business methods, or all software to sneak in", so we'll have a directive so everyone can get in line, and this directive will be very very clear on which kind of software is eligable for patents and which is not. Well, I have to say, this is not entirely clear to me, and I'd like to get your feedback too. It says "computer implemented invention means any invention, the performance of which involves the use of a computer, computer network or other programmable apparatus, the invention having one or more features that are realised wholly or partly by means of computer program or programs. Technical contribution means a contribution to the state of the art in a field of technology which is new and not obvious to a person skilled in the art. The technical contribution shall be assessed by consideration of the difference between the state of the art and the scope of the patent claim considered as a whole, which must comprise technical features irrespective of whether or not these are accompanied by non technical features. A computer implemented invention must me susceptible to industrial application, new, and must involve an inventive step. To involve an inventive step it must make a technical contribution". (general laughing).
So, right, I think there is huge circularity in that and I think they are kidding themselves. To me, this is simply opening the door to say, it seems to me that lots and lots of software patents can come through the door this way, and I don't understand what a technical contribution means.
A. I'm actually comforted by the bit about, it's got to be non-obvious to someone skilled in the art. All of the algorithms that we all know, sort, and all that we learn at university and so on, is all non patentable according to that ..
but it's got to have a technical effect, it's got to result in a process or a product, but that is not technically clear
A. that covers everything, I don't think that's a stopper at all
OK, then it talks about what it excluded from patents. Exclusions are computer programs as such. Business, mathematical or other methods also, and those programs that don't produce any technical effect beyond normal physical interaction between a computer and the computer in which it is run.
A. right, so what's a physical effect?
Well, I mean, a computer program has to run on a computer or there's no point in writing it. I suppose people write computer programs that they never try out but, so that's not patentable.
A. That's what I was thinking, physical effect, there's all the memory and disc changes, but that's not what they're saying
They're saying the claim for patent must lead to a product or a process through the execution of software. Well, a product, you can see a robot arm, or a process, maybe a manufacturing process for, as one of the books said, for contact lenses, that things are changed because of the software program behind it. But it seems to me that this can be applied to many many software programs. I find this so frustrating, I must say, circular reasoning.
I just want to move on, just before you come in, I want to talk about specific problems for open source programmers, some of the reasons why patents in general, not just this directive, software patents threaten the functionality of the open source movement. By the way, copyright is a tremendous threat also to the open source model, as are, and I think that those of you who build websites surely have run into problems with trade marks, can also be very problematic, and again trade marks are expensive, and I think they work against the small entrepreneur.
The reason patents threaten the functionality of the open source model is that in Gnu, that has a General Public Licence, and in its preamble which I think is wonderful, says that "we wish to avoid the danger that redistributors of a free program will individually obtain patent licences, in effect making the program proprietary. To prevent this any patent must be licenced for everyone's free use, or not licenced at all, and there can be no licence payments for third party patents." This, if you take this on down the line, it means that this obligation not to individually obtain patent licences and if you are going to obtain one then you must write your licence that it's free to all obliges people which brings them into conflict with huge numbers of patents out there in a huge variety of ways. Open source code is entirely public, and as I understand it, patent data is not searched for when you write code, that's not part, you don't have the resources. It is distributed, there are unlimited contributors who are often anonymous, it's distributed over time .. the people at the end aren't the same people at the start, usually, and it's incremental.
In fact, in open source work, statistically, it's been found that there has been very very little, it's rare to have patent infringement in open source work, which says to me that it's innovative, it's creative. But, the trouble is that any open source project can be threatened with a patent infringement claim by, and this may be a trivial patent infringement claim, possibly by an organisation or a company which is non open source, and you've got to drop the project because of the expense. You cannot defend yourself. Just doing the patent search is expensive, hiring lawyers is, as you know, outrageous. So, there is another problem in that the users of open source software face infringement risk too because they have agreed to your licence. The trouble for open source is that your code allows very easy, if there has been a patent infringement, it's very easy to see, it's open, it's public. You can't, you have low resources, you can't have legal defence, and you can't have patent search
Also, open source happens in all jurisdictions, and you don't know whether it's infringing a trivial patent out there somewhere. As I say there is some evidence that there is competition from non open source developers to compete against, possibly even destroy or certainly squelch open source work through patent infringement claims. If you were forced to obtain licences with the people bringing a patent infringement claim, you can't guarantee the terms of these private licences. You can't guarantee that the licence you sign with this company that is forcing you to sign a licence, will follow the ethics and philosophy and in fact the rules and regulations that you've signed, for the general public licence.
Several solutions, and I got this from a legal journal that I read which I thought was interesting, I didn't know about this. One solution is insurance, and there is something called the Open Source Risk Management Inc, and you can see in the US where everything is patentable, sells insurance to open source developers, insurance against .. and I have an instinctive dislike of this (general laughter), just like I have an instinctive dislike of the huge fees I pay in insurance as it is. Get the law changed, get rid of trivial patents. There aren't quite so many trivial patents this side of the atlantic as there are in the US. Good idea, but I'm not sure that will happen. It's been suggested there should be a patent pool for the open source community. Again, I have some objections to this because you don't want patents in the first place for your work, and you don't want copyright in the first place for your work. Simply, some people have said, well get real, you're going to have to adjust your developmental model to include patentable resources. I don't know how you're going to get those resources, however.
Anyway, I'll stop talking, hopefully I've thrown enough out. Oh, just one other thing, what the Council of Ministers turned down, which is liability exceptions to open source developers, and this does seem something that would be do-able. It's like fair deal in defences, which by the way have been eroded terribly through the last copyright directive. Again small entrepreneurs are hit very hard. But exceptions so that you don't get sued if you are an open source developer you don't get sued or threatened with a lawsuit.
So, anyway, I'd like to ask, in your opinion, should there be, coming back to my feeling that software has never been properly dealt with by the intellectual property system, somebody in the US who is just a great fighter against the encroachment of intellectual property laws, she is very very close to the real software and other technological innovators, and she was always said that patents and copyright are wrong for software and that there should be some sort of special protection system that is really really short term monopoly granted, like, a year. I'd just like to throw it open and say, what are your feelings about software and is it necessary to protect it at all.
A. The issue comes down to originality doesn't it. If you're saying that some piece of process or software should be original how do you define that?
Well, that's a copyright feature, it's not eligable for copyright protection unless it's original and in fact the UK copyright law is, and there have been lots and lots of court cases, it's a very broad definition, and it's "not copied from elsewhere".
A. Does that mean you could accidentally write something that was the same as someone else and that would be fine?
No, not, if it's got the same words then the presumption is that it's been copied, but that's copyright.
A. But in software terms, you could easily write the same words because it's a very limited set of words
Absolutely right, in the sense that there is continual adaptation, is there not, of other people's work?
A. You're looking at, what do they say, standing on the shoulders of giants, and you cannot define who came up with the idea, it might be millennia ago. For argument's sake, Einstein never had an original idea, he just took what he could, he was the one who made sense of it and was the first to the Patent Office. Same as Microsoft, everyone else was playing golf, Bill Gates was the first one to IBM wasn't he, he got his name on the bit of paper.
IBM has been very very very aggressive
A. A worrying example would be Amazon with their one-click shopping
But that's not protected in this country
A. That's only US
In the US it's patented, but not here. It's a business method. The result is not a product or a process, it's a business method.
A. What happens if you can do something two ways, say, with the Amazon one click thing, if there was a different way of implementing the same functionality, is it the way of doing something that is copyrighted or patented ..
It's both, a product, the contact lens that got patented, the first contact lens, but also the process. Another patent for producing contact lenses with different materials. When you get into the software business though, it's not so easy, it seems to me. So, would you be happy if there was no protection whatsoever for software? Either copyright or patents.
A. There should be something. Like, if I came up with something really new and original I wouldn't want Bill Gates to go and make a million dollars out of it
A. How could he make a million dollars out of it though?
Because in the area of copyright, this is what is frightening
A. At the same time you don't want to cap everybody else who could build upon that and go further, so you could go to the point of copyright but not patents
If I could just throw, I'm really very unsure about patents and copyright, I have to say, I just
A. patents of software
sorry, patents of software, but there has been some, there are also sadly real pirates out there, and I don't mean individuals who download music or copy a software program and adapt it, I don't mean individuals, I mean pirates who invest in copying technology, machines, and reproduce thousands if not millions of copies and sell them. Their intention is criminal, they produce multiple copies, they have no involvement in the content of, be it a software program or Harry Potter, or Million Dollar Baby, or whatever it is, they have criminal intent, and they make money. There is some good work on, in areas of the middle east, which, only because it didn't have very, well, unstable regimes, lack of intellectual property laws, all software was pirated, and there is some evidence to suggest that there was no software development at all because they were using pirated all the time, so no software was developed, was never created.
A. because
there was no incentive
A. you couldn't sell it because nobody ever paid anything for any software
right, and the pirated software was so much cheaper. There was no investment in creativity.
A. What's happened in the States where they have got some of these laws that people are trying to stop in Europe, what's been the effect?
Oh, it's a mess, the Patent Office is completely clogged up, totally clogged up, there are millions of trivial patents for trivial business methods, I mean, folding (sound of paper), there are ridiculous examples. This does stifle, it seems there has got to be a balance, but to me this just stifles creativity. Also, the big companies take out thousands and thousands of patents which, it's a very expensive business, but they have not one lawyer or ten or twenty, but 150 lawyers working on their patents on any given day. I don't know, but anyway, I'd like to hear other peoples ...
A. I was just wondering, I mean it sounds like, if the Patent Office is clogged up, that will get addressed, the budgets will be given to that, there'll be more jobs for civil servants, then that system will become efficient and the real effect of all of those patents then, once they become enforceable because people are there to enforce them, the real effect of that hasn't yet been seen, and if it comes in in Europe before we've seen the effect in the States, then we don't actually know what we're doing, what we're unleashing
I think probably
A. So give it ten years. The other thing is, once these things are locked down and patented, the effect is going to be seen in decades to come isn't it, more than, you know, next year or the year after. It's a very long term problem.
A. As for software production, we also have to explain the lack of open source production and there's also general .. (becomes inaudible) funding generally used for software production, other than copyright licences to copyright holders, which is an avenue (inaudible)
I have been really encouraged by the last six weeks and seeing how formidable the open source software movement is
A. It's inventive, I think that's where it's at. I'm wondering, will the model just change and no-body actually have .. does the law cover software that you have on your hard disc or is it stuff that you download and use in an instant or will there be some technical getaround
You mean spy system?
A. I mean, if you go to a website and run software on a website, the software's not on your computer it's on the server at the other end, so are you running it or are they running it and who are you going to sue?
But you have to copy it to run it
A. That was disproved anyway because anything online actually comes to your computer doesn't it, there was a gambling case wasn't there
A. I don't know, I'm asking, the result comes to your computer
You've infringed copyright because you've actually had to reproduce that to run it, if it's not licensed to you.
A. If I click a button on a website to run software on a server, the software runs on the server and I get the result, I haven't run the software. I've run it, but I haven't got it and don't own it
A. You've got the markup, the result
A. What can you run on the server that you cannot be viewing on your computer?
A. Well, any server side script, you see the result but not the code
A. The scripts that produce it are not on your machine, they're on the server
A. The other question, in an open source, if you wanted to go for Linux .. you said if any open source project gets hit by a patent infringment suit they have to stop the project because it's not worth doing, Linux is very big so it might manage a few, but ten, twenty, two hundred, two thousand and it'll be dead
A. You could probably threaten to pull the plug on their operations (inaudible) the GPO stopping using Linux
But the threat is to, let's say you form a group to provide software to a company that makes, you know, the Malton Bacon Factory or something, you use open source to write that software, which is then used by the bacon factory to turn out rashers more quickly or, whatever,
A. I wish you'd have thought of a nicer company (general laughter)
well, it's actually quite difficult to keep thinking of, they want a physical change, they want a technical contribution. It seems to me, and this is good, Scarborough needs this, it seems to me that a group your size really can be shut down very quickly. However, I don't think that it's, some interest.., when I looked at the 'enemy's' website, you know the Business Software Alliance, and Microsoft, and all that, I don't think they intend to do that up front.
What seems to be working out is this group called, I think, Intellect, which is the lobbying group for Microsoft, the big software developers, said "what we really prefer is that companies can choose which intellectual property system they want to use for the protection of intellectual creations" and I think this is far more danger... she said "companies should be able to choose whether they want to be able to use copyright, patents or open source, like Gnu licences". I thought, why should she say that? It's very clear because that is the most advantageous way of moving politically, because there are great advantages to copyright protection, for example, you don't need to register, it arises on creation, there are great advantages to the huge long term.
On the other hand Patents are useful in a different circumstance, you know, shorter term monopoly but an absolute monopoly. But there are times, in open source, whether you're primarily an open source company or not, there are times you want to use open source, don't you? To me, that is the way they will be moving. What I don't like is that governments are colluding in this by setting tougher and tougher, in copyright, tougher and tougher penalties for copyright infringement, taking away all the exceptions, like fair dealing, and in patents, everything can be patented, and it looked to me they will use open source if it's convenient but they will choose the most .. which isn't right, you know, patent was meant for inventions, copyright was meant for literary and artistic works.
A. I'm curious, could you clarify something for me, because I've been under the impression that the general public licence, copyleft, whatever you want to call it, was just a form of copyright but with the wording that you could reproduce it provided you pass it along with the same licence
You can, yes, they have a copyright licence and then they have the patent
A. So them saying you can use copyrights, patents OR Gnu licence is rather a ludicrous thing to say because it's like saying you can use patent, copyright or copyright
That's true, it's just that Gnu licence
A. because it's open source
Because it's open source they can exploit it for what it's good at
A. Is this a proposal to make a law forcing you to choose?
Yes, they're saying let us pick and choose, and cherry pick the law. Well, I'm old fashioned enough to think that
A. I thought you were saying they were going to try to force an organisation to use only one method
no, no, the powerful companies, and I'm old fashioned enough to think that you can't say today I'm going to follow the law about paying taxes and tommorow thou shalt not murder, you know. These laws were meant for specific kinds of work or products or aspects of human creativity and I really think they've been twisted and used in very poor ways
A. I was just thinking, presumably they could use open source and then when they reached a point they quite like they could change it
Well that has happened. Basically, what really frightens me, coming from the copyright angle, is that a lot of charitable foundations have gone to great lengths over the years, and governments have gone to great lengths over the years, well before the Internet, in making their intellectual property, works, say literary works, bills, information, reports, books, that sort of thing in the public domain so they are accessible to all citizenry, and I have clients who have done this, and as part of their generous attitude they would, and particularly once the Internet came along, they would grant absolutely free licences to use this material to anyone who came along, including commercial enterprises.
Well, what happens if that charitable foundation runs into financial trouble and allows this work to do out of print. Or, if it has a website, the same thing, this particular work is not on its website any more. It turns out there is then one source of finding that particular work that used to be in the public domain, it used to be freely accessible, and that is that commercial company that was granted a free licence, and they've put it into something called their database, which is protected by the database right now, and they charge people to have access to that document, so it's actually fallen out of the public domain, for a lot of well intentioned reasons.
A. There are parallels all over, there are things happening in biological world with the patenting of seeds, and patenting of indigenous knowledge by big companies, so things which were in the public domain are being snaffled up
That is really scary reading
A. We'll talk about that next week
A. Except, I suppose it's just a movement of increasing regulation all the time which reduces freedom, that's what it's about, across all intellectual property, locking it down
There are, in biological and pharmaceuticals and some areas there are some rules and regulations and some national laws that there have, in some pharmaceuticals certainly, that there has to be compulsory licencing and that the patentee can't just say "no, I won't allow you access to my drug", but, there has to be compulsory licencing but at very very high cost to get access to that drug, and it's only been recently that the pharmaceutical companies have back tracked and allowed the developing world to have the drugs for less than they charge the so called developed world.
A. I was just thinking, on an open source development project, when you've got multiple people developing, different people starting and finishing, if you want to take an action against that, it's not an organisation, what do you go for, where do you hit? It isn't anything.
A. The project manager
A. Anybody, all of them
A. Every one of those projects is going to be well managed, they're going to know who wrote that piece of code in 1999, is it that they can force you to go and snaffle in and say, right, that guy
I think they search the entire code and see if a patent has been infringed
A. But when they find it, what do they do? Who can they prosecute? Who are they going to go for?
It, I believe they go for the country that is, the people in the country that is producing it, but, I mean it should be, theoretically, open source can take
A. At least the movement's big enough, then is it possible to (inaudible)
Yes, I think this threat of trivial patent infringement suits does take place when groups of open source workers are starting to make money, and clearly it has, look at all the companies that have adopted open source.
A. I can see them being able to stop the copying of it until that infringement is stopped
That's copyright, copyright is a little different. Patents, you can actually do a search for patents. I'm not sure how it works in practice.
A. I was just curious. If it's a case of just stamping on a few ants but you haven't got the nest, then you can't stop open source
And this may be the great strength of open source, that, I mean nothing's going to really stamp it out is it?
A. It's also the weakness, with big corporations taking up open source. There's no figurehead, there's no nest. They feel there's no reassurance, and they haven't got the education
A. To me the biggest weakness is they haven't got the financial backing to fight against, if somebody attacks a piece of open source, they couldn't possible have that removed from every piece of open source that's distributed, then there's nobody to defend it is there
A. Who could have that removed, who is it who, if all those distributors decided to carry on
A. I suppose so, but there are projects aren't there, whether it's Red Hat or Mandrake or whatever, presumably they are organisations that take money that they could therefore prosecute
A. But they didn't write the code, they just copy it
And there are many small entrepreneurs who use open source and who work on open source projects
A. The users, they could prosecute
A. Well, yes, but there are a lot of them (general laughter)
I think partially, this is the open source movement looking to the future and saying, the situation is bad enough and we see the extension of patent protection as being very threatening
(inaudible)
A. Something puzzles me, just taking the example of the Amazon One Click solution, that to me just seems almost like patenting a problem, the user would have wanted a quicker way of ordering their goods, so the user would have demanded not having to type lots of details, credit card details, they would have wanted a quick and simple mechanism. Amazon provided that, but how could that be patented, I don't quite understand how that gets through because isn't that just a logical progression?
Software that leads to a new business method, that's what the US Patent Office accepted that claim
A. is that where our legislation, this directive, is going
No, no definitely not. No. To give the EU directive credit it is very very clear about that. If you go to the UK Patents Office website they give you examples of how business methods or computer software programs per se are not patentable and won't be
A. So that's not regarded as a process then? If that one click thing is regarded as a process you could apply it to almost anything, not just a shopping cart.
I think it has to be more of a physical process
A. The physical process is creating a user account, going on the site, choosing something without having to put in at least one piece of detail, that's what it boils down to
Well, they do say
A. It could be applied to so many things on a website
Oh, it's outrageous
A. It's like patenting closing a car door
And who gets to the Patent Office first and files enough claims
A. It's recognised that Amazon got there first, but then again, I think there was a gentlemans rule, you know, we could patent this but we won't because it's too generic, too umbrella, it could affect so many things and so many people, but Amazon said "well bugger that, we'll have it", I don't know
I think the whole atmosphere encourages that kind of rather greedy view of life.
A. My understanding is, that's pretty much what the big companies are doing, they're all grabbing hold of what they can so that if one company sues them for patent infringement they'll say, well, we'll have you over that one then
A. So where does it end up?
So IBM have, did you read that, has just released 500 patents. Since they own (general laughter) 150,000 or something, it's not, or 250,000
A. It won't make much difference then
A. I wonder whether, the way they might view it, the winning formula might be that if we implement this kind of law, there's a lot of concern in software about India and China and the huge numbers of very skilled programmers that they have, and that if they don't implement something like this then their innovation will go up, ours will be stifled, and from a business point of view, that might win the argument.
A. Interesting idea
A. One thing I was going to ask you is, assuming most of us are, sort of against the idea, who do we say, I know you can lobby your MP but, what do we do, do we go to our MP and say "I'm against software patents", he'll go "great", you know, he'll just still tell Tony Blair that he's for it
no, actually Laurie Quinn I know, because I lobby him about, because I'm involved in a local Amnesty International group, and through the group I've learned that Laurie Quinn does actually count the letters that he gets on issues and (general laughter), well, that's how
A. He does, he writes how many he gets in his newsletter, foxhunting
A. Does he write how many he reads?
A. He doesn't read them, he just weighs them (general laughter)
A. Received and read, about a 50% difference
in fact I'd keep up with the news and if this directive shows any signs of life it's not Laurie Quinn it's actually your MEP that's important, your Member of the European Parliament, and there's a list of those up anyway on the web, and their addresses, and if I were you I'd read some of these very detailed reasons giving examples and so on. Is it the no software patents website that gives you this website that's entirely patented, and it really is, from the EPO. But they also give many more sophisticated technological arguments than I am capable of giving, because I just don't always understand the technology at all.
And I would, if this starts looking like it's coming back, I would write to the MEPs for the Yorkshire and the Humber region, it's important. I think it's particularly important to show, to say things that, you know, we have great faith that, the business of, new technology business, will improve Scarboroughs prospects for the future and to let them know that you're from Scarborough and that you care very much about the economy and that you're not, you know. What I think people envisage is completely, rather wacky nerds sitting out in somewhere strange but in fact we're all hooked into local, national and international economies and we want new technologies to make life better for people not worse, and I think it's important to point out that, whether you're involved in the university or your own self employment, or you're employed, that you .. there are real positive reasons to do that.
A. There must have been some campaigning sites, while you've been looking around
A. Laurie Quinn does have some IT role doesn't he? More than an average MP. He was in railways, but I think he's on .. approaching him is more effective than approaching your average MP because I think he sits on various committees
Yes, but it's now in the European Parliament, but, the UK, if it gets aggressive again in supporting it, that would be the time to lean on Laurie Quinn. Not that Laurie Quinn can be leant on, but, you know, to add to his numbers of letters.
A. You've obviously done a lot of work on that, it was really excellent, and very clear, and thank you very much.
Well, I'm not sure it was very clear, it's very circular (general laughter)
A. Well, it was as clear as it could be
Well, thanks a lot because I really, really enjoyed doing this because, like most people I don't, there are whole areas I don't learn about unless I'm forced to. Also, I joined your list and really enjoyed reading the daily contributions (general laughter), especially the arguments
A. Usually lots of those
Do you mind if I come in occasionally with a comment, if I know something's happening on the intellectual property scene, do you mind if I just post a ..
A. Please do, yes definitely, because
Or if I come across a good website, or, I mean, I hear through all sorts of other work I do hear bits and pieces about software. I wish I heard more
A. I'm thinking a Wiki (or maybe this) would be the perfect place to gather all the information, I don't know if anyone's seen
A. We'll have to have a look, you'd have thought there'd be something, Wikipedia's probably got a whole section devoted to it
A. Then it's a mutual contribution thing, it might be clear, concise, but it would also be up to date as well.
John Allsopp's Against Software Patents page, Scarborough Linux User Group (SLUG)