Can You Feel the Tension?

There's an important conference taking place in Brussels next week: "Tensions between Intellectual Property Rights and the ICT standardisation process: reasons and remedies - 22 November 2010". It's important because it has a clear bearing on key documents like the forthcoming European Interoperability Framework v2.

It all sounds jolly reasonable:

Key ICT standards are perceived by many as critical technology platforms with a strong public interest dimension. However, concerns are voiced that Intellectual Property Rights (IPRs) and their exclusivity potential, may hinder or prevent standardisation.

The European Commission and the European Patent Office (EPO) are organising a conference to address some specific issues on patents and ICT standards: are today’s IPR features still compatible with fast moving markets and the very complex requirements of ICT standardisation in a global knowledge economy environment? Where are problems that we can we fix?

Unfortunately, I can't go - actually, better make that *fortunately* I can't go, because upon closer inspection the agenda [.pdf] shows that this is a conference with a clear, er, agenda: that is, the outcome has already been decided.

You can tell just by its framing: this is "a conference to address some specific issues on patents and ICT standards". ICT is mostly about software, and yet software cannot be patented "as such". So, in a sense, this ought to be a trivial conference lasting about five minutes. The fact that it isn't shows where things are going to head: towards accepting and promoting patents in European standards, including those for software.

That's not really surprising, given who are organising it - the European Commission and the European Patent Office (EPO). The European Commission has always been a big fan of software patents; and the EPO is hardly likely to be involved with a conference that says: "you know, we *really* don't need all these patents in our standards."

Of course, the opposite result - that patents are so indescribably yummy that we need to have as many as possible in our European ICT standards - must emerge naturally and organically. And so to ensure that natural and organic result, we have a few randomly-selected companies taking part.

For example, there's a trio of well-known European companies: Nokia, Ericsson and Microsoft. By an amazing coincidence - as an old BBC story reminds us - all of them were fervent supporters of the European legislation to make software patentable:

Big technology firms, such as Philips, Nokia, Microsoft, Siemens, and telecoms firm Ericsson, continued to voice their support for the original bill.

So, no possible bias there, then.

Then there are a couple of outfits you may have heard of - IBM and Oracle, both noted for loving software patents slightly more than life itself. So maybe a teensy bit of bias there.

But wait, you will say: you are being totally unfair. After all, is there not an *entire* massive one-hour session entitled "Open source, freely available software and standardisation"? (although I do wonder what on earth this "freely available software" could be - obviously nothing so subversive as free-as-in-freedom software.)

And it's true, that session does indeed exist; here's part of the description:

This session will explore potential issues around standardisation and the topic of open source software and free licences. We will look at examples of how standards are successfully implemented in open source. We will also consider licensing issues that may exist regarding the requirement to pay royalties for patents present in standards, as well as other licensing terms and conditions in relation to the community approach common in open source and free software technology development.

But what's the betting that those "examples of how standards are successfully implemented in open source" will include rare and atypical cases where FRAND licences have been crafted into a free software compatible form, and which will then be used to demonstrate that FRAND is the perfect solution for ICT licensing in Europe?

Luckily, we have Karsten Gerloff from the FSFE to fight against the software patent fan club, and tell it as it is. Pity he's on his own on this though - and no, poor Erwin Tenhumberg does not count. He may be "Open Source Programme Manager, SAP", but SAP is one of the fiercest proponents of patenting software in Europe, as I've discussed a couple of times.

So this leaves us with Karsten against the collective might of the European Commission, EPO, Microsoft, Nokia, Ericsson, IBM, Oracle and SAP: clearly they'll be some of that "tension", as the conference title promises, but a fair fight conducted on a level playing-field? Not so much....

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EPO: FSFE Does It by the Numbers

Yesterday I was praising Red Hat's submission to the EPO in its pondering of the patentability of software. Today, it's the FSFE's turn. They've produced a fairly short but sweet document, which has a sentiment close to my heart:

4.(a) Does the activity of programming a computer necessarily involve technical considerations?

No. The reverse is almost invariably true. Any software program is the result of programming, which is in essence combining a series of algorithms, and algorithms are matematics.

Got it in one.

Goodbye WIPO, Hello ACTA?

Something strange is happening at the WIPO: it's becoming more reasonable. Where once it was a bastion of intellectual monopoly intransigence, it is now showing signs of being, well, more *open* to new ideas....

On Open Enterprise blog.

Why Software Should not be Patentable

As I've written elsewhere today, there's a lot of activity happening around software patents at the moment. One forum where they're being considered is WIPO.

The FSFE has put together a suitably diplomatic submission to that one of its committees about why software should not be patentable; here's the key section:

the economic rationale for patents is based on providing incentives in cases of market failure, disclosure of knowledge in the public domain, as well as technology transfer, commercialisation, and diffusion of knowledge. The “three step test for inclusion in the patent system” should therefore be based on demonstrated market failure to provide innovation, demonstrated positive disclosure from patenting, and effectiveness of the patent system in the area to disseminate knowledge. Software fails all three tests, for instance, as innovation in the IT industry has been dramatic before the introduction of patents, there is no disclosure value in software patents, and patents play no role in the diffusion of knowledge about software development.

I think this is one of the best summaries on the subject. One to cut out and keep.

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Happy Document Freedom Day

Today is Document Freedom Day. So, why should we care?

In a world where records are increasingly kept in electronic form, Open Standards are crucial for valuable information to outlive the application in which it was initially generated. The question of Document Freedom has severe repercussions for freedom of choice, competition, markets and the sovereignty of countries and their governments.

In other words, document freedom is about your freedom: if your documents are in chains, so are you.

Certifiably...Open

Here's a slightly different approach to encouraging openness:

Today sees the launch of the trial period for Certified Open, a programme to evaluate the technical and commercial lock-in of ICT solutions. Certified Open promotes fair and effective competition in the delivery of software, hardware and services.

...

Graham Taylor, Director of OpenForum Europe said: "Certified Open represents a complete solution for public and private sector users to check the openness of their ICT solutions. We frequently see examples where organisations have become locked-in to a system due to the costs involved in change. Analysis carried out by OFE has indicated that 90% of public sector organisations no longer have the freedom to choose ICT solutions on the basis of competitiveness, functionality or price because of lock-in.

Certified Open is designed to ensure freedom from lock-in and openness to fair competition. The framework assesses dependence on proprietary or undocumented protocols, dependence on undocumented or proprietary data formats, licensing terms that preclude the use of alternative products, extensions to standards to ensure good performance and the use of pseudo-standards dependent on patents or other restrictions that prevent compatible competing implementations."

Certified, indeed.

St IGNUcius Kisses Bacula

According to an FSFE press release, Bacula - "a set of computer programs that permit you (or the system administrator) to manage backup, recovery, and verification of computer data across a network of computers of different kinds" - has been officially embraced by St IGNUcius:

The Bacula Project has became the first signatory of the Fiduciary licence Agreement (FLA), a copyright assignment that allows FSFE to become the legal guardian of projects.

This is interesting, because it means - presumably - that the number of projects that will switch to the GNU GPLv3 once it's finalised has just increased by one. Those on the open source side of the fence will doubtless see this as a land-grab by the FSF, which it is, in the nicest possible way.

DRM.info - not about Digital Rights Management

An entire site about Digital Rights Management sounds like some torture from the Spanish Inquisition. But the fact that DRM.info is not a site about Digital Rights Management but Digital Restrictions Management gives a clue as to why its rather more tolerable: it's not exactly for the idea.

It comes from the Free Software Foundation Europe, and is designed presumably to catalogue the deletorious effects of DRM, offering them up as a warning and stimulus to remedial action.

Why Microsoft Got Thwacked

If you were wondering what exactly the sticking point was that led to Microsoft getting thumped by the European Union, here's a helpful press release from the Free Software Foundation Europe. The central problem is the company's refusal to make documentation available that would allow GNU/Linux to interoperate perfectly with Windows, thanks to the Samba free software project:

"Microsoft is still as far from allowing competition as it was on the day of the original Commission ruling in 2004. All proposals made by Microsoft were deliberately exclusive of Samba, the major remaining competitor. In that light, the fines do not seem to come early, and they do not seem high," comments Carlo Piana, Milano based lawyer of the Free Software Foundation Europe (FSFE) regarding the decision of the European Commission to fine Microsoft 1.5 million Euro per day retroactively from 16. December 2005, totalling 280.5 million Euro. Should Microsoft not come into compliance until the end of July 2006, the daily fines could be doubled.

These fines are a reaction to Microsofts continued lack of compliance with the European Commission decision to make interoperability information available to competitors as a necessary precondition to allow fair competition.

Microsoft's refusal to comply - and its willingness to incur fines amounting to hundreds of millions of Euros - is a measure of just how worried it is about Samba in particular, and open source in general.

The release also points out how risible are Microsoft's claims that it cannot easily supply the requested information:

"If we are to believe Microsofts numbers, it appears that 120.000 person days are not enough to document its own software. This is a task that good software developers do during the development of software, and a hallmark of bad engineering," comments Georg Greve, president of the FSFE. "For users, this should be a shock: Microsoft apparently does not know the software that controls 95% of all desktop computers on this planet. Imagine General Motors releasing a press statement to the extent that even though they had 300 of their best engineers work on this for two years, they cannot provide specifications for the cars they built."