19 Oct 2003

Patent Victory

The European Parliament’s rejection earlier this month of the Commission’s proposed software patent policy is a watershed moment for the global free software movement. From both technical and political standpoints, this decision will have far-ranging consequences for years to come.

As I have said in previous columns, the practice of granting patents for inventions entirely expressed in program code—a practice widely followed by the US Patent Office but previously prohibited in most European countries by their domestic patent statutes—poses uniquely serious obstacles to free software development. Whereas copyright law covers expressions, patent law conveys a monopoly over an idea. If a proprietary computer program does something useful, under copyright law a developer is free to write a new computer program that does the same useful thing, provided only that she does not copy any original expression employed by the first program. But if some aspect of the way computer systems or programs work is made the subject of patent claims, no one may independently reinvent a way of achieving the same outcome without infringing the patent. Copyright law, as the GNU GPL shows, can be used to increase the vitality of free software. Patent law, if incautiously or maliciously employed, can prevent software freedom altogether.

Granting patents for supposedly novel and unobvious computer programs or programming techniques, though not approved by the United States Supreme Court, has been widely indulged by the US Patent Office, and the specialized court that deals with most US patent issues, for the last two decades. The European Patent Office has recently begun following the same approach, despite the absence of any legislative authority to do so, on behalf of familiar multinational information technology companies who have taken out a flood of patents covering “inventions” already patented in the US. Such patents—as a recent half-billion dollar verdict against Microsoft has reminded everyone—represent a menace to navigation for all software developers, proprietary and free alike. But it was free software developers whose grass-roots lobbying effectively delayed and then reversed the European Community’s apparently-inexorable march to the same bad end. Socialist and Green members of the European Parliament have recognized their partisan concern with the issue: patent policy in Europe will now be a continuing subject of party debate, which it has not been in the United States.

The decision will have substantial technical and legal effects as well. Some future free software development will occur in Europe that would be more difficult to encourage in the US because of perceived patent problems. Technical pathways that “invent around” US software patents will compete for acceptance against European-developed solutions that need not overcome the damage done by US over-patenting. Some US patent-holders may try to stop use and distribution in the US of free software developed in Europe that allegedly infringes their US patent claims, thus creating hostility among users to their own products, and to the patent system as a whole. Because software is a global industry, and its standards are global standards, organizations responsible for standard-setting will come under increased pressure to follow the lead of the W3 Consortium, and make policies excluding US-patented technologies from their standards requirements and recommendations. US patent policy itself will come under pressure—European law in the area now rests on a firmly democratic foundation, while the US approach is the outcome of administrative determinations and lower court rulings, lacking any legislative endorsement.

But beyond their success with this issue, free software developers and users in Europe have realized through this process their own strength as a political force. As European governments at municipal, provincial and national levels become more dependent on free software for government operations, officials more readily understand the importance of the constituency’s concerns, and are more responsive to a movement which combines the economic interests of their own government agencies with the political will of hundreds of thousands of voters. The patent controversy was an enormously important defensive struggle, in which the free software community in Europe stood off a threat that US experience had shown to be extremely serious and potentially completely disruptive. Defensive success, however, is the prelude to more affirmative political initiatives, in which the constituency that knows why the free sharing of information makes for a stronger and fairer economy in the twenty-first century begins to seek legislative support for its own view. In government software acquisitions, education policy, the “digital rights management” controversy and many other fields, the victory over software patents this year will be the harbinger of many more victories to come. From here on out, in the politics of Europe, Free Software Matters.

This column was first published in the UK in Linux User. It is also available in PostScript and PDF formats.

permalink | columns/lu | 2003.10.19-00:00.00

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