Opposing The European Software Patent Directive

The European Union software patent directive, which this 2003 article opposed, was ultimately dropped by its own supporters after facing lots of opposition. However, they later found another way to impose software patents on most of Europe: through fine print in the unitary patent.

The computer industry is threatened by a Wild West-style land grab. The biggest, richest companies are being assisted by governments to take unassailable exclusive control of the ideas that programmers combine to make a program.

Our society is becoming more dependent on information technology. At the same time, centralised control over and ownership of the information technology field is increasing, and mega-corporations with law-given dominion over our computers could take away our freedoms and democracy. With an effective monopoly on modern software, the largest grabbers of the “land” will have control over what we can ask our computers to do, and control over production and distribution of information on the net, through monopolies that the EU plans to give them.

The monopolies are patents, each one restricting use of one or several of these software ideas. We call them “software patents” because they restrict what we programmers can make software do. How do these monopolies work? If you wish to use your computer as a word processor, it must follow instructions that tell it how to act like a word processor. This is analogous to instructions found on a musical score, which tell an orchestra how to play a symphony. The instructions are not simple. They are made up of thousands of smaller instructions, much like sequences of notes and chords. A symphonic score embodies hundreds of musical ideas, and a computer program uses hundreds or thousands of software ideas. Since each idea is abstract, there are often different ways to describe it: thus, some ideas can be patented in multiple ways.

The US, which has had software patents since the 1980s, shows what this can do to development of everyday software. For example, in the US there are 39 monopoly claims over a standard way of showing video using software techniques (the MPEG 2 format).

Since a single piece of software can embody thousands of ideas together, and those ideas are arbitrary in scope and abstract in nature, writing software will only be worthwhile for those who are rich and have a large software monopoly portfolio: those with the war chest and clout to fight off claims that might otherwise sink a business. In the US, the average cost of defending against an invalid patent claim is $1.5 million. The courts favour the wealthy, so even when a small business gets a few patents, it will find them useless.

Software patents are being claimed at a tremendous rate in the US. If they become legal in Europe, most of those US patents will be extended to Europe also. This is likely to have a devastating effect on European software development—leading to job losses, a poorer economy, more expensive computer use, and less choice and less freedom for the end user. The advocates of software patents in Europe, and the probable beneficiaries of them, are the patent bureaucracy (more influence on more areas of life), patent lawyers (more business from both plaintiffs and defendants), and computer mega-corporations such as IBM and Microsoft.

Foremost among the software mega-corporations is Microsoft. Even as part of the European commission investigates Microsoft for monopolistic practices, another part is planning to hand it an unending series of overlapping 20-year monopolies. Bill Gates wrote in his Challenges and Strategy memo of May 16 1991 that

If people had understood how patents would be granted when most of today's ideas were invented and had taken out patents, the industry would be at a complete standstill today. The solution … is patenting as much as we can … A future start-up with no patents of its own will be forced to pay whatever price the giants choose to impose.

Today Microsoft hopes to parlay software patents into a permanent monopoly on many areas of software.

The European commission says its proposed directive on computer-implemented inventions will disallow software patents. But the text was actually written by the Business Software Alliance, which represents the largest software companies. (The commission didn't admit this—we detected it.) It contains vague words that we suspect are designed to open the door for software patents.

The text says that computer-related patents must make a “technical contribution”; the commission says that means “no software patents.” But “technical” can be interpreted in many ways. The European patent office is already registering software patents of dubious legal validity, defying the treaty that governs it and the governments that established it. Operating under those words, it will stretch them to allow all kinds of software patents.

Arlene McCarthy, MEP for north-west England, has been a key figure promoting and acting as rapporteur for this proposed directive. The cosmetic changes she has so far proposed do nothing to solve the problem. However, the cultural affairs commission's amendment that defines “technical” will assure British and European software developers that they will not risk a lawsuit simply by writing and distributing a software package.

The vague words drafted by the mega-corporations must be replaced with clear, decisive wording. Wording that will ensure that our information future will not be hijacked by the interests of a few rich organisations.

Please go to softwarepatents.co.uk [Archived Page] to learn more, and then talk with the MEPs from your region.