[ffii] Software professionals challenge Arlene McCarthy in The Guardian

Hartmut Pilch phm at a2e.de
Fri Jun 20 14:01:28 CEST 2003




Thursday June 19, 2003
The Guardian

Plain speak
Arlene McCarthy (Small fry need protection, June 12) wrote a reply
offering to correct myths and inaccuracies in an article written by
myself and Richard Stallman, founder of the GNU project. Her points have
been answered before, but a rebuttal can be found here:
http://swpat.ffii.org/index.en.html#amcc030614. She claims to be
harmonising and clarifying some current EU legal mess, but the EU law is
already unified by the European Patent Convention and even experts
commissioned by her JURI committee have repeated the lack of clarity
arising from leaving important terms such as "technical contribution" or
"technical field" undefined.

Could she tell us whether some example patent claims she's been offered
should be patentable or not, and what provisions in her proposal makes
them so. She writes of the support for her proposal from SMEs. If those
against had written to her, she would have had up to 20 times as much
mail, at least according to the 94% of opposition to software patents
from the CEC consultation, the representation of SMEs in Brussels on
November 7 and 8 and the study conducted by Professor Puay Tang from
University of Sussex.

I, and many others who McCarthy labels unreal computer rights
campaigners, want to ensure the freedom of small to medium enterprises
to continue innovating through computer software. We want language that
will make it clear the directive won't allow software patents.
Nick Hill
nick at nickhill.co.uk

No monopoly
Arlene McCarthy writes that free software "is not 'free', but is
actually a different form of monopoly". It is misleading to describe
free software as a monopoly. Anybody may participate in the GPL
"monopoly" at no cost.

There may be competition between participants in a single project,
whereas proprietary software cannot be modified without approval from
the copyright and source code holders (for a fee they set). Copyright
holders usually exercise their right to prevent competition in
modifications to their software. Perhaps McCarthy thinks it is
monopolistic for the GPL to impose conditions on the developers of
derivative works. All copyrighted software does this.

Free software differs by allowing derivative works. BSD-style licenses
are different again. They permit proprietary derivative works and do
nothing to "impose [their] business model on the rest of industry".

The purpose of the patent system is to encourage inventors to publish
details of their inventions. By stifling free software (which details
the technologies it employs), software patents would be
counter-productive. Free software should be explicitly exempted from
patent restrictions, especially as McCarthy claims the directive "will
not have any adverse effects on open source software development".

Software developers must be assured they will not be forced to concede
groundless patent lawsuits if they cannot afford to contest them. We
have seen such cases in the US, where software patents are already granted.
Tim Ivorson
tim.ivorson at usermail.com

Legal minefield
I am a software practitioner with 15 years' experience who holds
developer certifications from Microsoft and Sun, and have worked on
proprietary and open source software projects on both sides of the Atlantic.

I take issue with the notion that "small fry" benefit from software
patents. As has happened in the US, if software patents are legitimised
in the EU, even in a "limited" form, it will be large corporations who
will hold vast patent portfolios. This will create the same kind of
minefield that exists in the US, stifling innovation and creativity.

McCarthy states the directive is not proposing to patent all software,
and that "software as such" cannot be patented. The line between what is
pure software and what is software that runs on a "device" is blurred;
doesn't all software ultimately run on a device? We also don't have a
crystal ball to see what might happen.

The notion that any kind of software patentability will not have adverse
effects on open source software development is untrue. Far from happily
coexisting with software patents in the US, open source software dances
perilously around the patent minefield. Harmonisation across Europe on
the patentability of computer-implemented inventions is desirable, but
that harmonisation should be towards outlawing this practice. If
software patents are allowed to become commonplace in Europe, lawyers
and big corporations win. Everyone else loses.
Dafydd Walters
dafydd at walters.net

Likely access
Last week's cover (NHS spree revealed, June 12) has some indication of
the "electronic plans you are not allowed to see". Any mention of
security for the massive amount of health records data that will be
flying around the UK? Or is that one of the reasons the documents are
off limits?

Many NHS sites connect across ISDN (point to point) and have stringent
security, but as the system expands to IP-based communications with a
"national intranet", unauthorised access to our medical records (for
example, via unattended terminals anywhere in the country or other
methods) will become much more likely.
Gordon Joly
gordon.joly at pobox.com

Hartmut Pilch, FFII & Eurolinux Alliance              tel. +49-89-18979927
Protecting Innovation against Patent Inflation	     http://swpat.ffii.org/
145,000 votes 400 firms against software patents     http://noepatents.org/

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