March 7, 2005  ·  Lessig

So despite the fact that the EU Parliament has rejected software patents for Europe, and despite the fact that there is not a qualified majority of member states supporting it, the EU Council has now endorsed their draft of the “Directive on the Patentability of Computer-Implemented Inventions.”

This struggle continues to astonish me. There’s no good economic evidence that software patents do more good than harm. That’s the reason the US should reconsider its software patent policy.

But why Europe would voluntarily adopt a policy that will only burden its software developers and only benefit US interests is beyond me.

They call it a “democracy” that they’re building in Europe. I don’t see it. Instead, they have created a government of bureaucrats, more easily captured by special interests than anything in the US.

  • http://anomalyuk.blogspot.com/ Andrew McGuinness

    This is quite predictable. More examples of the EU’s attitude to democracy and to its own rules.

  • Ben Hutchings

    Who calls it a democracy? It’s a federation of states.

  • Tom

    The EU certainly endeavor to paint themselves a democratic body.

  • http://zengun.org/weblog/ michel v

    And there’s worse: should you utter any critic on the soon-to-be-voted European Constitution, should you say you are going to vote No, you get labelled… an anti-european.
    This reminds me too much of people being labelled “unamerican”.
    We’re all ashamed that things have turned this way, but of more concern is the WEAKNESS of our governments, and their willingness to just bend over for corporate interests when they have the very possibility to stop the train from wrecking.

  • http://gnuosphere.blogspot.com Peter Rock

    Richard Stallman has said that the free software community will eventually have to band together politically and “demand an exemption” from software patents.

    (I’m sure he’s said this many times but one reference is from Disc 2 Interviews of “Revolution OS” released in 2001).

    It seems as though software patents may exist alongside free patents (my understandnig is that FOSS can have patents as long as those patents can then be used by anybody – essentially nullifying their monopolistic nature) just as FOSS now exists alongside proprietary software. But that is only if an FOSS exemption is granted. This appears to be the next step. Is it? I may be missing something here…

    Perhaps the FOSS community can be required to let go of all of their patents in exchange for a 100% exemption thus allowing those that wish to fight each other in court to use any weapon possible. Hell, maybe they can hold an auction to raise funds for the FSF… :)

    If an exemption is not granted, unethical lawsuits in the name of “IP” may be launched against numerous FOSS development teams. An exemption may (only if it is a 100% exemption and NOT based upon “market share” for FOSS projects) strike a balance allowing the IP believers to have their competitive arena and the FOSS developers to…well…develop “freely”. Of course, the hurdle will be the megacorporations whose “worldview” is that FOSS projects (like Linux for example) are competitiors. The patent warriors may have won the battle using the EU Council but many companies in strong, monopolistic positions, would now fight a 100% FOSS exemption attempt that keeps them from dropping legal bombs on FOSS projects. We can recall Steven Ballmer’s subtle mention of patent owners “coming after” their “IP” royalties in Asia not too long ago…

  • Dirk

    That there is a lot of potent bureaucracy going on in EU policy is common understanding. Since the overall concept and the acting bodies of the EU had been mainly designed by the administrative powers of the member states instead of elected membes of European parliaments this should not be so surprising (Please allow me to add here, that no parliament in Europe would have dared to propose such a thing as a EU-wide market or common regulations et al. back then).
    However, this seems to be only the downside of the otherwise very stimulating fact that the European people are really merging together, economically, socially, culturally. And one very important sign is that everybody here (in Europe) starts to realize slowly the lack of democratic control – therefore the new common constitution and the ever louder articulations of the common Parliament. In the end, this will also be heard regarding its opinion e.g. against a too restricted software patents policy.

  • Kai

    Please don’t give up on us just yet! This has been kind of a shock to me because I am a supporter of the European idea and I used to defend the EU as well.
    It ain’t over ’til the fat lady sings. We lost a major battle here but they haven’t won yet. In fact, in a way, it strengthens our position. The Council has never been a particular stronghold of the patent opposition and it is remarkable we were able to stall the process at all and forced them to use questionable, if not illegal, methods to force this through. The proposal will now go back to the European Parliament where we have a much stronger footing. Additionally, the many MEPs are quite angry because they have been slapped in the face multiple times by the commission and the council.
    Don’t get me wrong this will still be tough because it is much harder to change or reject the proposal in the second reading. Nevertheless we won’t give up. The European Greens have already started to organize the opposition to this mockery of a Common Position. The JURI committee asks for documentation of what the council did today.
    Furthermore, this questionable adoption of this “Common Position” may allow us or other to attack it in the European Court of Justice.
    If all fails, there may still be enough vagueness in the directive to bend it in our favor when it gets implemented into national law by the individual member states.
    So don’t give up on us yet! We will fight on. I will continue sending bananas (sorry, German only) to the Ministry of Justice as necessary. :)
    Finally I’d like to thank all Americans and people worldwide who have been supporting us on this effort so far. It is not an easy fight, let’s hope we will win.

  • jianying ji

    Way to go Kai! you have my support. I am also a big fan of the EU and hope that the European Parliment will have the backbone to block the patent directive. And hopefully the Concil will be schooled in how to behave. It would be especially satisfying if the European court can hand down a direct and clear ruling that tells the concil to actually act in a democratic fashion.

  • http://www.alanmccann.com Alan McCann

    When the “social good” trumps the individual, all is permitted. The EU is an organization built to prevent certain outcomes (e.g. war, too many work hours) and not to promote freedom and democracy.

  • http://www.elitism.info/journal David

    The EU might not be the most democratic of bodies, and so far it was a federation of states and needed not be. It is precisely the new constitution that Michel V seems to be against that will change this for the better, strengthening the Parliament against the Comission and the Council, since right now the EU is very much like a soviet union (union of ministers, not of peoples). That said, I fully stand by the European project, and ask Mr Lessig how come the US got software patents first, if they’re so much better than us?

  • http://www.langemark.com Gunnar Langemark

    And there’s an even more eerie angle to it than that. It seems to me that the commission is ignoring the rules of procedure here. At least they disregard the move by the danish parliament.
    See my post on my blog.

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  • http://jfcarter.blogspot.com/ Jean-Fr�d�ric Carter

    This is really disheartening, you know, Professor Lessig.

    But as Kai said, we shall all continue to fight! The fact is that the procedure is somehow shortened now (you can read about that aspect on my blog), and it doesn’t give us much time to convince the MEPs to reject the directive.

    I would like to point out that the Commission did not infringe any rule yesterday. It just used the rules to their extreme limit (to the point of no return?). And this is a sufficient reason to say that European Institutions are completely biased, and are much too far from the ordinary people who build everyday’s EU.

    This directive is now likely to be definitely adopted within a few months. And you know what?

    If the European Commission wins its crusade against… everybody else, we will not only toll the bell for thousands of IT companies in Europe, we will also lose a big part of what European people fought for for years: freedom.

  • flynn

    “voluntarily adopt”… haha.

    This is just an example of US imperialism and the power of capital over elected representations.

  • Rob Long

    Democracy cannot exist without some bureaucracy. The black-magic of distilling the “will of the people” must be achieved in some way, most states choose bureaus of state-educated clerks.

    The real sham is democracy itself, both the ideal and the implementation. The group has no more a right to rule over the individual than does an individual to rule over a group.

    Societies have developed means for cooperation over the years, some have worked better than others. Those means which tend to recognize the individual as at least partial sovreign over himself, have tended to flourish over those that did not.

    The United States was not born a democracy, and for this reason, some freedom still exists within our borders. But as GWB clearly demonstrates, when the people get what they want, they get what they deserve as well. The Old Republic was killed by Lincoln, from that point forward, and all-embracing state has been the inevitable result of increased appeals to the “greater good” and decreased respect for individual liberty.

  • http://www.cookcomputing.com Charles Cook

    Lawrence is spot on. I hope this decision will open the eyes of more people to the reality of the EU and inform their referendum vote on the EU constitution, at least where their government lets them have a vote.

  • http://www.tekstadventure.nl/branko/blog/ Branko Collin

    Could the two persons who claim that the new constitution will increase democracy in the EU (which is not the same as “Europe”), back up their claims with actual evidence?

    Specifically, I am looking for the following:

    - How will the new constitution have the force of law? What sanctions will a nebulous supra-national organisation be able to impose on persons, organisations and states?

    - How will the constitution differ from current rules, and how will that be better for democracy?

    From what I have read so far about the new constitution, the law making process will remain virtually untouched from the one that has been in force since the Treaty of Maastricht.

    So far, voting “Yes” seems to be intended to throw sand in the citizens’ eyes, to give them the feeling that they have an actual say in European matters. I would like to see some actual evidence, not just state sponsored propaganda, that the union actually will become more democratic.

  • http://briareus.modblog.com Briareus

    Reminds me of that creepy EU poster that was out around 1995 or so that showed the european populace depicted as an army of robots rebuilding the Tower of Babel inside the ruins of the old one. Just who and what will gain from this coalescing power? The system itself. Seems that the lessons of history are so easily discarded even in ‘enlightened’ populations.

  • http://ynohoo.braindog.org Tom McAnally

    as Kai said, don’t give up hope! Below is the response I received from the office of my MEP, Proinsias De Rossa:

    “Thanks for your message. Following yesterday’s decision by the Competitiveness Council to adopt its common position (first reading) on the proposal, the European Parliament has now requested that the Commission make a statement to the EP Plenary tomorrow in Strasbourg. MEPs are awaiting with considerable interest to see what the Commission has to say.

    It would not be correct to say that the Council has ‘overriden’ the EP. The EP and the Council both share ‘co-decision’ on this issue. The Commission produced the proposal. The EP adopted its first reading in September 2003. Now the Council has adopted its first reading. If they both want to see a Directive adopted, as both have indicated by adopting first readings, then they will have to negotiate. Both sides hold an effective veto over each other’s actions. The EP now can, in its second reading, retable any of its first reading amendments not taken up in the Council’s text, which the EP has yet to see, or reject the common position entirely. If Council still refuses to accept EP second reading amendments, a ‘conciliation committee’ of MEPs and national civil servants will meet to reach a compromise. If none is found, the proposal falls (and the Commission would probably return with a revised proposal and start the whole thing again). The key point is that the Ministers do not take the final decision on this issue – they must work with the EP. The next step is the EP’s reaction – to what the Commission says and to what’s actually in the common position. From our estimation, there would still be an anti-patents majority within the EP following last year’s elections.

    We strongly support the Constitution for a variety of reasons and would say that rejecting it would make no difference at all to software patents, which is being debated and voted upon on ‘pre-Constitution’ treaties. In fact, if the Constitution were in place, the Commission’s proposal would have been subject to increased vetting by national parliaments before deliberations began in Brussels and the Council’s vote yesterday would have taken place in public. Arguing against the Constitution on this issue would only serve to divert attention away from the politics of the software patents issue.”

  • http://jfcarter.blogspot.com/ Jean-Fr�d�ric Carter

    Tom -

    I agree with your MEP’s point of view. But the problem is that we don’t have much time now…

    Things are going to move on faster now. The EP has now three months to make its decision.

    Let’s just hope they will not do the “we don’t want to create a negative precedent” kind of thing.

  • guerby

    No european bureaucrat ever wrote a word on this new law, it was directly written by USA big companies, see this article on ZDNet:

    At the centre of the controversy is the revelation that the “author” of a draft copy of the directive appears to be a key employee of the Business Software Alliance, a group that represents the interests of big businesses, including Microsoft.”

    So, you see we do import the best from USA. No European citizen or small company was ever listened to during the whole “process”.

    Let’s hope the European Parliament does as some predict and kills this law proposal immediately.

    Meanwhile, in addition to contacting your MEP, you can do like me and give a few bucks to the FSF France or some appropriate European organisation like the FFII

  • guerby
  • http://mobileeyes.blogspot.com Doug Thacker

    It’s interesting that this comes shortly after Bush’s trip to Europe. I wonder what had the greatest influence here – Microsoft money, or the desparate desire to shore up weakened alliances? Probably both in equal measure. The money might arrive, but I doubt this decision – or any other – will have in the end any bearing on Europe’s standing in the world vis a vis the U.S.

  • http://jfcarter.blogspot.com/ Jean-Fr�d�ric Carter

    Regarding Microsoft’s influence on this topic, I can tell you one thing.

    As Florian Mueller points out on his website, Microsoft is the biggest tax provider in Ireland (because of Ireland’s tax dumping policy, Microsoft established a big part of its european decision center in Ireland and some manufactures too).

    And the EU commissioner Mc Greevy, in charge of the process of adoption of the directive, was formerly the Irish Minister of Finance. He’s therefore Microsoft’s best friend in the Commission, and was basically nominated for this purpose.

    And no doubt this has a lot to do with the fact that the process is going faster now.

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  • Timo

    Seems to me there is a colossal failure to talk about the same thing on all sides of this issue. I’d like to raise a question or two on the substance of this directive, which seems to escape close examination in this debate (how democratic or otherwise the EU codecision procedure is, surely a worthy topic for another occasion…)

    What is a “software patent” concept in this directive that so many people are so highly excited about ? Is it the “IPR maximalist” extreme i.e. that if anything is implementable in software, then surely it must be patentable [like the known offline business methods bconverted to digitized form that the U.S. Patent Office keeps handing out patents on] ? Or is it the “IPR minimalist” extreme i.e. that if anything is implementable in software, then surely it cannot be patentable in any shape or form ? Which is it ? What are we talking about ? One of these extremes or something in the middle ? What exactly does the directive text provide in this regard ? Seems to me that participants in this row do not agree on what are we talking about. No wonder, then that total confusion and huge acrimony reigns.

    My take on the directive is that it is neither of the two extremes, and should not be either. Whether the “middle” that is being proposed is workable or not, that is a fair question. But we would surely defuse most of the heat around this if we could agree that the directive does not propose either extreme.

    * * *
    Many commentators here seem to suggest that open source software should be exempted from patents. A most interesting suggestion. Would anyone care to provide a rational justification for such an exemption – because of the community project nature of OSS development perhaps ? Another reason ? I completely share the feeling that there should be some limits to patents potentially blocking or imposing costs on stuff that *should* be usable by all of us but have doubts that a blanket exemption for OSS is the right way to go.

    Timo

  • http://www.rabbit-comics.org/ Phiip

    I agree with the fact that the EU isn’t perfect.
    Sure, there’s a lot of lobbying going on in Bruxelles,
    lots of conflicts of interest.

    But in the end, I can see that many european laws go on the right direction,
    for a more fair and better environment for european humans.

    So I don’t think we are more lobby-driven than the Us !

  • http://anomalyuk.blogspot.com/2005/03/software-patents.html Andrew McGuinness

    To back up Branko Collin, the proposed Constitution has exactly the same legislative method that is being used here: i.e., the Council can ignore the Parliament’s decisions, and unless the Parliament acts within three months by an absolute majority, they are considered to have accepted it.

    See page 117 of the following document (which is the fifth of about 60 pdf files making up the constitution).

    http://europa.eu.int/eur-lex/lex/LexUriServ/site/en/oj/2004/c_310/c_31020041216en00550185.pdf

  • adam

    Not everybody puts as much stock in Florian Mueller’s opinions as Jean-Fr�d�ric Carter. And it’s McCreevy, or McGreedy if we feel like a little satire. And the suggestion that he was “nominated for this purpose” is preposterous, McCreevy was nominated because the Taoiseach (Prime Minister) wanted him out of the way, period. He should probably consider himself lucky he’s in Brussels and not waking up next to a horse’s head every morning.

    I’d be interested in genuine commentary on the constitution too btw, I’m a federalist but this kind of thing makes me waver in my support.

  • http://jfcarter.blogspot.com/ Jean-Fr�d�ric Carter

    Adam -
    Thanks for these precisions! It will help us understanding the situation.
    I did not know McCreevy was sent out of the Government, and found a safe harbor in the Commission.
    By the way, I do not give full credit to Florian Mueller, I was just indicating my source of information on this topic. And I have no doubt that Florian might be a little bit biased too!
    Why does it make you waver in your support?
    I believe in Federalism too, and this kind of event convinces me to go further in this direction, and quicker…
    Although it is true our (future) constitution is anything but Federalist.

  • http://jfcarter.blogspot.com/ Jean-Fr�d�ric Carter

    Adam -
    By the way, my comment on McCreevy’s nomination wasn’t so preposterous: you misunderstood me.
    I wasn’t saying McCreevy was in the Commission because he was somehow pushed there by Microsoft, I was saying that, if McCreevy was in charge of the process of adoption of the software patent directive (inside the Commission), it wasn’t just a coincidence.
    That’s it.

  • http://boplicity.blogspot.com/ Claus

    > They call it a “democracy” that they’re building in Europe. I don’t see it.

    I don’t see it, either (I’m living in Germany).

    > Who calls it a democracy? It’s a federation of states.

    But each state claims to be democratic (which is only partially true). During the last years, I more and more got the impression that we live in a so-called oligarchy (where a–albeit, at least partially–”democratically” elected minority rules over a vast majority of citizens). My guess is, that is’s basically no more than a few thousand people who really make the decisions (and definitely *not* the people). At the same time, it’s essential for this kind of system to work (and to *continue* working) to hide the truth from the majority, giving the impression that, although there *are* grave problems we are currently facing, we *basically* do have a democratic system. Otherwise, the now established structures would collapse very soon.

    Claus

  • http://www.sbs-world.com Zennie

    As one who’s worked in politics and public policy this development does not surprise me. Nations that are new to a particular technical field are generally slaves to “experts” who only convince them to adopt their ideas unchanged.

    This is certainly the case with the countries of Europe and their bent toward copying US software policy. What will be interesting is how they address the advance of open-source methods. I’m not confident they will jettison the US system for one of their own. Not at this point.

    What they will do is determine a way to gain a tighter grip on the control of software technology communication, if only to maintain perceived competitiveness in certain industries.

    Boy, they’re going to be in for a shock.