August 29, 2003  ·  Lessig

The battle against software patents is coming to a head in the EU. (Not that much of the support for software patents has come from the head.) As these articles (, TheRegister, and Slashdot) describe, the battle has become quite heated, with the side of right not expected to prevail.

A large number of F/OSS-related sites are shutting down because of the move. See, e.g., Gimp. And those amazing Europeans are actually marching in the streets about this threat to the freedom to innovate.

That there is a threat would be more obvious to WIPO and the US government if it didn’t spend its efforts working to remain ignorant about the importance of balance in intellectual property law. But I understand, they’re very busy, those regulating sorts. So here’s perhaps the most concise and compelling account of just why software patents will harm new innovators (that’s you Europe) and benefit old innovators (that’s America), written in 1991 by Mr. Gates:

“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 stand-still today. The solution . . . is patent exchanges . . . and 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. That price might be high: Established companies have an interest in excluding future competitors.” Fred Warshofsky, The Patent Wars 170-71 (NY: Wiley 1994).

Perhaps the F/OSS sites should take more advantage of this unique opportunity for them to quote the wisdom of Mr. Gates.

  • Ed Lyons

    (Sure, I’ll quote Gates on the problems with patents on the same day I quote Mussolini when I’m frustrated waiting 30 minutes for the T.)

    Interesting how the Europeans are actually protesting on this. And while I support OSS sites’ online protests, what good will that do? I don’t know if all this electronic activism accomplishes anything. My friends on Capitol Hill tell me that web/email campaigns are generally ignored. (Sure – I felt good signing the Eldred petition, but now what?)

    Should we encourage the masses to file thousands of unwarranted software patent claims to overwhelm the system? (Maybe I’ll try and patent the mouse click) Should we get a billboard in Crystal City, Virginia (home of US Patent and Trademark Office) that explains our case?

    If we don’t go the traditional route (campaign contributions, full-time lobbyists, a free culture PAC) What exactly do we do about this stuff?

  • joe

    A: spend a little time thinking about how the importance of this can be conveyed to joe six-pack… if you can express the absurdity of something in a sentence in a manner that ensures that said six-pack will remember just how broken the system is, you’ve done more good than signing an on-line petition (note that the star wars kid petition has 78,000 signatories and the reclaim the public domain petition has 18,000 signatories).

  • Stefan Bechtold

    It’s not that Americans are not “marching in the streets about this threat to the freedom to innovate” (nor that they are not amazing). It’s just that there are different sizes of protest marches. Sometimes, something like this may just not be enough.

  • Mikael Pawlo

    I am told the vote has been postponed again, but I have not been able to confirm it.

  • Ed Lyons

    I agree that convincing Joe Sixpack matters. But there are only a small amount of issues that he’ll care about. I think Joe understands the concept of “clean air” or “overfishing” but is he going to do something about that? Hardly.

    Joe Sixpack will never care about intellectual property as long as he thinks he doesn’t own any. (Professor Lessig would say that he does own the public domain – but alas, Joe has forgotten.)

    What will we do – send him a list of great public domain works and expired patents and give him a framed “certificate of ownership”?

  • Fuzzy

    Bill Gates is not Mussolini. Bill Gates is a person who understands software and business. As one of the richest people in the world, his statement has a great deal of relevance in this situation.
    The purpose of the web protests was to try to raise public awareness. There are many people who use and follow certain Free or Open Source projects without being part of the Slashdot crowd. By having many different sites participate it can help expand the base of people who have heard of the problem.
    Software is not currently patentable in the EU, so trying to ‘overwhelm the system’ is not useful. In the United States, there is a fee associated with filing a patent, so trying to ‘overwhelm the system’ would be more costly than effective.

  • Adina Levin

    I’m no so convinced that nobody’s listening. When 2 million people protested the FCC rules on media consolidation, congress acted.

  • Karl-Friedrich Lenz

    The vote has been postponed from September 1st to at least September 24th.

    Then, if the directive passes Parliament, there will be the issue of implementing the directive in the national law of the Member States. A directive has no legal effect until that happens.

    Of course, in that case, the opponents will point to Recital 14 of the proposal. Which says that the directive does not change anything. And since the directive doesn’t change anything, there is zero need for any implementing legislation in the Member States.

    So even if the directive proposal happens to find a majority in Parliament, that’s not the end of this fight.

  • Juan Carlos De Martin

    With a group colleagues and students we have sent letters to the MEP’s elected in our province. The typical reaction (which runs across party lines) so far is: 1. a clear interest in finding out why this apparently obscure technical matter solicits such activism and 2. a demand for more information.
    The vote postponement gives us three more weeks to intensify the campaign and reach other Italian MEP’s.

  • Floyd McWilliams

    I work in the software industry and have been told that the worst abuser of software patents is IBM. They make millions each year by threatening to sue other companies. I don’t think Microsoft engages in any such behavior.

  • Bernhard K.

    Of course not, MS is a monopolist, they don’t ask for a share of money – they have enough of that – they just ask to do as they want it – one example:

    As STAC, in the old MS-DOS days sued MS, MS and STAC settled, but not without merging, practically MS just used it’s power to buy a competitor and use it.

    So IBM and MS have different ideas. IBM is not about excluding competitors, MS/Bill Gates (as quoted) is.

    I’m sure MS also uses patents to get low prices for buying small software companies, which is something MS regulary does, but you never get the details of these deals…

  • Kevin

    I also agree that convincing Mr/Ms Six-pack that software patents will have a negative impact on them, and something that most of us seem to care about is money. So let’s use that, because there’s no doubt in my mind that the immense pressure being put on the EU to adopt software patents is largely due to the threat of Free software, which has now reached the point that it’s winning against proprietary software on a level playing field.

    Bu more than this, if free software was to become the basis of the next generation of media formats, then we’d be in a position to keep the freedoms that we currently enjoy. Enter the media giants – that’s why they’re so active in this area too.

    So sell the future as one where our books can only be read on the computer we used to download them, might expire, would probably disappear when we upgrade our computers. Same with our music and films.

    We’d need be forced to buy special equipment from a monopoly of manufacturers who would name their price. This equipment would be made to be used only in the way the manufacturer intended – already, my DVD player forces me to sit through annoying intros (copyright messages I can accept, but program intros, etc. should be optional) under instruction from the disc (I get ‘Operation prohibited’).

    So it’s already starting, and it’s going to get much worse. Corporations want full control, and Free software is the only realistic defense we have. And they want to crush it with software patents, because you need lots of money to do it, and few Free software projects have that kind of money.

  • jason

    heres a proposal for you.
    Premise 1: patents and patent enforcement exist so that research and development do not go unrewarded. If you couldn’t make a profit on R&D, you wouldn’t do it.
    Premise 2: it is the governments job to enforce property rights, including patents.
    Premise 3: it is also the job of government to regulate, break up, or otherwise restrict monopolies, so that a normal free market, with fair competition can be maintained.
    Premise 4: software patents require relatively litle in the way of capital investment when compared to such things as nuclear reactors, or prescription pharmaceuticals. despite this low development cost, software technologies are widely used, sugesting that an economy of scale can resolve our problems if properly aplied.

    conclusion: allow software patents, but put a cap of 10 times the development cost on the patent. once your company has made back 10 times the estimated initial investment from licenceing fees, the patent automatically goes to the public domain. Aditionally, you must accept money from someone if they wish to contribute to a particular patents buy out. if you use your patent to try to force competitors out of buisness, they can band together to buy out your patent, even against your will. this proposel ensures that you can be fairly compensated for your intelectual property, while still protecting those like the open source comunity from predatory practices by monopoly powers. the process of declaring a patent to be invalid due to prior art should also be streamlined.

    this proposal comes from the principles of economics. monopolies have been shown to be capaple of amassing vast wealth, and patents currently have the ability of creating monopolies, therefore everyone abuses the system to the fullest extent possible. if we remove the ability to use patents to drive competitors out of buisness and/or charge them arbitrarily high prices, we will remove the incentive to file invalid patents by the thousands. we can then return to using patents as just a protection of the inovator, and not a way to stifle inovation.

    feel free to pass this proposal on to others, especially your senator, or congressman. I certainly intend to.
    sincerely -jason

  • eddy nguyen