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Software Patents Debate in LinuxTag 2010 and Elsewhere in Europe

Posted in Europe, Google, Law, Patents at 9:25 am by Dr. Roy Schestowitz

Berlin at night

Summary: Coverage of the patent issue which was raised in LinuxTag 2010, the council of the European Union, and also touched on by Google’s chief legal officer (who helps protect from MPEG-LA)

THIS post hopefully contains positive news. This time we write about LinuxTag not in order to say that Microsoft paid to intrude the event and upset people in it [1, 2] (which is true). This time we won’t mention Microsoft.

Opposers of software patents roam LinuxTag 2010. These include the FFII and Florian Müller. Dominik Brodowski wrote a paper [PDF] on “Criminal Regulations by the European Union – New Threats or New Opportunities” and it also discusses software patents towards the end. To quote:

Consequences for Open-Source Software?

But what does all this mean for Open-Source Software? Let me briefly address three major aspects: the protection of intellectual property, the primacy of prevention, and an increasing awareness for safe and secure software.

Protection of Intellectual Property?

First of all – and probably most controversial to those following this presentation – the European Union strongly emphasises the value of intellectual property and acknowledges a need for its protection. This is something, however, at least large parts of the Open-Source Community agree upon: If companies sell products which use modified GPL-licensed software, the Open-Source Community is forcefully protecting their own copyrights. So this is, in principle, nothing to fear.

A distinct point relates to the field of „software patents” – and the enforcement of such „software patents” by means of criminal law. Much has been talked about this issue, and much will still be talked about it in future, for there is large disagreement whether „software” can be patented at all. Let me just point out one aspect: part of the issue might be the overly long protection period – about twenty years – not fitting to the fast evolving development of software.

And yet another, controversial aspect relates to „digital rights management“ – or, more pointedly, criminal law provisions against the circumvention of intellectual property protection. The much-feared „hacker paragraph” – § 202c German Penal Code – turned out not to be a threat in practice; further criminalization does not seem to loom around the corner.

Here is the programme page of LinuxTag for Florian Müller from Germany:

Overview of recent, ongoing and impending decision-making processes at the EU level (legislative and regulatory processes) that are relevant to the commercial adoption, distribution and development of Linux and open source: the European Commission’s Digital Agenda and the European Interoperability Framework; the proposed European patent reform and its impact on software patents; the aftermath of recent competition cases (Microsoft cases; Oracle/Sun merger control; potential new cases and recently lodged complaints (such as the complaints against IBM’s conduct in the mainframe market); other relevant developments in Brussels.

Müller sent us his ODF-formatted presentation (now available online and also in plain text form under his blog). He added: “I know you’re particularly interested in what’s said about Microsoft and there are some slides in it on the Microsoft antitrust case. I would like to point out that when I brought up the slide about how their conduct has changed in a way that I believe is in no small part due to the EU antitrust case, I nevertheless made it clear that I don’t like their lobbying for software patents and certainly everyone will have to watch how things evolve. Right now, however, I am clearly more concerned about IBM and Apple. I know you have a different prioritization but based on what concerns me more and what concerns me less, the exclusionary use of patents (explained in a recent blog post of mine) is the number one concern.

“Right now, however, I am clearly more concerned about IBM and Apple.”
      –Florian Müller
“There’s some interesting stuff that Kroes plans to do about companies that are “significant market players” but not “dominant” like Microsoft is. They want to pass an EU law to require significant market players also to license interoperability information. The best example I can see right now is Apple. Looking at their problem with the Free Software Foundation, it’s really time that their tight grip on everything related to their products is loosened and while it would be very difficult to make a case that they’re dominant (they’d argue Nokia sells more units, RIM is very big, Android is coming on stronger and stronger), there’s no doubt they’re significant and as far as I’m concerned, I think it would be great if the same principles that underly the EU’s ruling against Microsoft were also applied one day to a company like Apple. That would help consumers and application developers, including those who want to develop applications that are free software.”

Regarding other issues he wrote: “About OpenForum Europe I’d like to mention that they try to spin Neelie Kroes’ speech as an endorsement of open standards and while she indicated a preference for patent-free/royalty-free standards, I didn’t see her opposing the concept of patented standards at all. It was more like she said the market would favor “free” in the end.

“I know from good sources that there’s some awareness for those antitrust complaints against IBM and it doesn’t help their push for royalty-free standards in other areas than their #1 cash cow. If they don’t even offer any license deal to resolve the situation satisfactorily, they make themselves just ridiculous by reiterating their view on open standards to the EU institutions. So they hurt the FOSS interest twice, in the particular case of Hercules (which obviously isn’t a MySQL or Firefox in terms of installed base) and more importantly in the overall context of interoperability/standards policy.”

To OpenForum Europe he wrote: “Hope Google commitment never to use [software patents] against open source will be in #ofesummit recordings when published.”

A Red Hat employee shows that even Flash’s co-creator dislikes H.264. It’s interesting because Flash is one of the main vectors through which H.264 gets spread on the Internet. To quote the “Flash guy”:

The second challenge was selecting a video codec. We wanted to use the cool new H.264 open standard but Macromedia did not feel they could afford the H.264 license fee. I believe that the capped $5M per year H.264 license fee was similar in scale to the annual Flash engineering budget at the time. The H.264 license fee model is very anticompetitive. H.264 licensing is free for very small users, expensive for medium size companies and inexpensive for very large companies. This model puts the midsize companies who could challenge the dominant companies at a significant competitive disadvantage and is the reason that we implemented the proprietary but affordable On2 codec in Flash instead of the open and expensive H.264 codec.

MPEG-LA is somewhat of a patent troll, as we explained in the following posts:

Google has fortunately come up with a substitute to MPEG-LA. It’s Free software, but Müller complained about patents last week (even after Google had resolved the licensing issue). Müller may be having second thoughts now. In his LinuxTag presentation he wrote that Google’s attitude is: “anyone using patents against open source is a bad idea, you won’t see us do it”

“Google’s chief legal officer made great commitment,” told us Müller in an E-mail exchange. “He said at the OpenForumEurope summit (when I asked about patents and open source) that I wouldn’t see them use patents against open source and that anyone (without meaning to chide a particular company) doing so is a bad idea.

“I hope they’ll have that in their recordings when they publish them next week or so because this is exactly what all the big guys should say (and, of course, they should then keep that promise, but making it is a great first step per and ups the ante for some others).”

“Google’s chief legal officer made great commitment”
      –Florian Müller
MPEG-LA is reliant on software patents, thus it will have difficulties in Europe (regardless of WebM/VP8 and Ogg Theora). A few days ago we showed that the UPLS is in trouble. It means that software patents will be harder to push into Europe as matter of law. Here is a report from the recent EU hearing [PDF] which also touched on the subject (regarding the “request for an opinion from the council of the European Union”).

In page 10 it says: “As regards the legal basis set out in Article 308 EC (now Article 352 TFEU), Ireland maintains that the creation of a unified patent litigation system cannot be considered to be an objective of the European Union. Nor has it been demonstrated that the effective functioning of the common market requires the conclusion of an agreement on the PC.”

“UPLS is undermining the European Court of Justice to hear and determine disputes in matters relating to Community law,” writes the FFII’s president.

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