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Intellectual Monopolies Insanely Out of Control

Posted in Asia, Europe, Free/Libre Software, Law, Microsoft, Patents, RAND at 6:47 am by Dr. Roy Schestowitz

This is independence?!?! Or is it monopolistic chaos?

We foolishly believed that on (American) Independence Day we would be seeing plenty of news about liberty and freedom, but instead we found heaps of anti-FOSS moves, especially in Europe where there was no holiday. Let’s start with India though.


A couple of months ago we saw resurfacing attempts to make software patents legal in India. Business Standard now has an article about it. [via Digital Majority]

The contentious issue of software patents is rearing its head again, both in India and globally. The Indian Patent Office, for instance, invited companies and institutions to comment on its Draft Manual 2008 — Patent Practice & Procedure (software patents included) this April.


“We find that the draft manual seeks to introduce software patents, and we believe this is not in consonance with the current legal situation which states that “a mathematical or business method and or a computer program per se or algorithms are not patentable”,” notes Red Hat (India).


The patent system is also perceived as a hindrance to open source. Open source firms like Red Hat too acquire patents. However, they argue that it’s for “the sole purpose of asserting defensively in the event of a future lawsuit”.

This may develop into another case of David vs. Goliath, where Free software developers haven’t sufficient funds for political manipulation and intervention with lobbyists.


Over in Europe, Digital Majority identifies some new and irregular activities.

European Patent Office

According to an EPO publication, this establishment now has more authority than it’s supposed to have. It makes the system ripe for abuse.

The EPO Gazette reports that some MEPs members of the Legal Affairs committee visited the EPO in early June. Questions were raised on the democratic control of the Office, and how the Alicante model of the OHIM could also apply to the EPO. One MEP mentioned that the EPO is also taking political decisions.

On the bright side, based on this new finding, it seems safe to say that software patents still face a barrier in Europe — for now.

Method and apparatus for multi player bet auxiliary game
This decision involves a casino game which has been automated. The conclusion of the BoA is the most unremarkable: the invention is not patentable because of lack of inventive step. The remarkable part is the very good explanation of what inventive step, technical contrinbution and further technical effect means.
They say “The Board is of the firm belief, that it cannot have been the legislator’s purpose and intent on the one hand to exclude from patent protection such subject matter, while on the other hand awarding protection to a technical implementation thereof, where the only identifiable contribution of the claimed technical implementation to the state of the art is the excluded subject-matter itself.” And a good quote on further technical effect “it needs to be stressed that the “further” technical effect can not be the same one which is inherent in the excluded subject-matter itself.

Community Patent (Back Door)

The Community patent is frequently mentioned in relation to Slovenia and France. Charles McCreevy seems to play a role in this too although he’s more focused on another back door for software patents: a so-called ‘harmonisation’ plan. The Community patent can work against a community of developers (FOSS) while harmonisation is actually a matter of contamination (but the terminology used here is intentionally deceiving.

Here are some sightings of the status of the Community patent, as seen through the eyes of Digital Majority:

EU Internal Market and Services: Legislative strategy

Commissioner Charlie McCreevy has chosen…


Work continues on the patent litigation system and on the Community patent. Since the Commission adopted the Communication “Enhancing a patent system in Europe” in April 2007, it has been actively working towards a consensus on the key elements among Member States in the Council under the German, Portuguese and Slovenian Presidency in the Council.

The Sarkozy regime is no friend of FOSS, either. Watch this: French Unveil Presidency Priorities

The French have set the construction of the European Research Area (ERA) as the main research priority for their presidency of the EU.


Elsewhere, the French pledge to ‘strive to make progress towards a Community patent’.

More here: French unveil presidency priorities

The French have set the construction of the European Research Area (ERA) as the main research priority for their presidency of the EU. Other priorities include boosting Europe’s role in space and making progress towards a Community patent.

Microsoft Lobbying

What would an anti-FOSS initiative be like without some Microsoft proxies?

Here you can see the likes the ACT and the BSA joining hands and pushing for the FOSS-hostile RAND.

Both BSA and ACT have long advocated licenses which allow the use of specifications with “Reasonable And Non-Discriminatory” conditions. These “RAND” conditions usually require the users of standards to pay a fee, or reciprocate in another way. Those who advocate free software consider these conditions incompatible with the open source principle.

Jan Wildeboer is an open source evangelist at Red Hat in Europe who supports the plans for the revised EIF version. He explained, in an interview with heise online, “Particularly the stipulation that presumed intellectual property has to be made available without the payment of license fees in open standards complies with a fundamental requirement for open source developers and providers of open source solutions.” He said open standards are generally a “vital component of modern IT infrastructures”, and was surprised that the BSA renewed its call for license fees to be paid for HTTP and DHCP. Wildeboer said this argument has already proved redundant in the debate about software patents.

Microsoft Sued

There’s some comfort to be found in the fact that Microsoft would be suffering from the same poison which it strives to inject into international law. What would be a sweeter revenge than a lawsuit against Microsoft over its GNU/Linux-hostile Silverlight?

Video software developer Gotuit Media has sued Microsoft, claiming that its Silverlight multimedia software infringes several of the company’s patents.


The suit seeks an injunction preventing Microsoft from using this technology and asks the court to award damages and legal fees.

Alcatel-Lucent Sued

The company which gave Microsoft a hard time over patents [1, 2, 3, 4, 5, 6] has just been stung too. Oracle is the greedy one this time around.

Oracle is suing Alcatel-Lucent, claiming the massive telecom is in violation of a number of Oracle’s patents, according to documents filed with the U.S. District Court for the Northern District of California.

Alcatel-Lucent emphatically denies Oracle’s claims and is charging in turn that some Oracle software — including its flagship database — infringes on some of Alcatel-Lucent’s patents

‘Ownership’ of Airwave Frequencies

Ownership of immaterialistic things is only one of the problems with software patents. You may wish to read this new essay on the ‘right’ to ‘own’ knowledge for justification of the criticism.

Two people on opposite sides of the world have exactly the same idea at the same time. Which one of those two people would be most morally justified in claiming to own the exclusive rights to that idea? Should it be the first to dash through the doors of the USPTO office, with a big wad of cash in his hand?

In a timely fashion, on this year’s Independence Day, Linux Journal published this article that criticises the ownership of another immaterialistic thing: spectrum.

The chocolate is cost. The rulemaking proposes making Internet access over that spectrum “free” — in the free-as-in-beer sense. Not the free-as-in-freedom sense. Especially not in the free-as-in-speech sense. And least of all in the free-as-in-markets sense.


Naturally, lobbying is involved here.

Hollywood’s ‘Ownership’ of the Web

More important than the above is the following urgent matter which is actually about privacy, censorship, and copyrights. Under many people’s noses, the media industry seems to have taken control over legislation for our beloved Internet. Glyn Moody has issued a rushed call for action.

There is a very important EU vote taking place on July 7th on some amendments to telecommunications legislation that threaten to sneak in a number of catastrophic measures…


Inevitably, that data would leak out – no database is secure, as recent events in the UK remind us – with huge and irreparable damage to the individuals concerned.

Finally, and in many ways most extraordinarily, these amendments effectively give special legal powers to a particular class of private entities, allowing courts and police to be by-passed. This is wrong not only on a practical level – there are countless cases where mistakes have been made in alleging copyright infringement, for example – but also as a matter of principle.

Ben Henrion goes further and labels it “Soviet Internet”.

Amendments to the European Telecommunications directive being rushed through the European Parliament propose a “Soviet internet” where software publishers and internet service providers watch traffic and data for Hollywood. Software and services that run on the internet would have to ask for permission of the regulators.


Benjamin Henrion, FFII representative in Brussels, rings the alarm bell: “Tomorrow, popular software applications like Skype or even Firefox might be declared illegal in Europe if they are not certified by an administrative authority. This is compromising the whole open development of the internet as we know it today. Once the Soviet Union required the registration of all typewriters and printing devices with the authorities.”

Hollywood’s ‘Ownership’ of ‘Your’ Computer

Although it transcends the scope of this Web site, this is a subject that was discussed here before. Keep an eye on the FOSS-allergic DMCA law, which is fortunately still being challenged by some.

Yesterday, a district court dismissed several claims in the case Coupons, Inc. v. Stottlemire, in which we had, in March, filed an amicus brief. Coupons offers online coupons that consumers can access and print using software provided by Coupons.


This is because controlling use of copyrighted material is already addressed by copyright law, and addressing it again in the DMCA would upset the careful balance between the rights of copyright owners and those of the public. As the court properly understood, maintaining a clear distinction between access-control claims and rights-control claims “leaves room for individual fair uses, adaptations for the blind, library research, and the other statutory exceptions to copyright.”

Speaking of anti-FOSS laws such as the one above (DMCA), also in the news you’ll find Microsoft expanding its anti-GNU/Linux laptops plot. We mentioned it quite recently.

Will it ever be as little as just $18 for Windows XP on merely any laptop? Perhaps free with subscription (hidden cost) any time soon? In selected nations, Microsoft already experiments around this idea.

Microsoft has loosened the hardware restrictions that PC makers must adhere to in order to install Windows XP on ultra-low-cost PCs, according to documents seen by IDG News Service.

Remember that Microsoft’s executives already admit that GNU/Linux is their number-one competitor. Strategies for fighting this threat include: very cheap software (or trials with attached strings like lock-in or expiry/subscription), laws that forbid FOSS, and prevalent software that excludes FOSS (Silverlight and OOXML for example).

Perils to FOSS come from unexpected directions, which are important to understand. It’s not a matter of side-by-side comparisons of Windows and GNU/Linux, not when some companies refuse to obey existing market laws.

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