BSA plays the IP card against the European Commission
Leave it to the Business Software Alliance (BSA) to distort the definition of "open standard" in order to serve the interests of Microsoft and its other members. The BSA doesn't like the European Commission's increasing interest in open source and open standards to deliver software interoperability.
As the BSA's European software policy director declared,
They [the European Commission] define open standards inconsistent with the common understanding of the term in what we believe is a dogmatic approach. It fails to recognise that almost all standards that help interoperability and that governments should indeed use to promote the very objectives of the EIF do have intellectual property.
This is a clever shift of the argument, trying to preserve the status quo while it's clear that the European Commission is looking forward to improve interoperability, rather than backward to defend the type of interoperability we've had for far too long. You know, the kind where everyone is forced to interoperate with Microsoft because it controls 95 percent of a market, and can only integrate with closed, poorly documented APIs and protocols.
The European Commission is increasingly realizing that open standards without safeguards like open source are a hollow promise. Interoperability, in turn, depends on such open standards, as Red Hat, for one, has long argued:
Interoperability is a critical issue for the Commission, and usage of well-established open standards is a key factor to achieve and endorse it.
Exactly. And open source is critical to guarantee that "open" standards are just that. Sorry, BSA, your intellectual monopoly is waning.
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As a long time reader, I know you're too smart and usually too intellectually honest to make such a disingenuous argument. I hope it is merely a misunderstanding based on reading too many reactionary accounts, rather than an attempt to simply gain a few open source cred points by bashing on Microsoft and BSA.
I can't speak for the BSA or MIcrosoft, but we at ACT believe that the EIF (as written in the first draft and as explained during last week's conference) is simply ill-formed policy. When looked at openly and rationally, I'm sure that we can find a lot of common ground here.
This is not a battle against the use of open standards or open source. We at ACT, at least, are not against either (despite what you may have heard from those who wish to simply dismiss us). We are, however, about promoting reasonable public policy that leads toward the best solutions for citizens, governments, and the software industry writ large. The way this policy has been written and talked about thus far (with the possible exception of the EC's comments to the Register), suggest that it is not good policy.
First, making the openness of a standard a criteria by which to base procurement decisions is a great idea. Making it the ONLY criteria, or a litmus test, can lead to bad decisions. One of our member companies, a small French software firm, created the file format for your beloved Amazon Kindle (they eventually sold to Amazon). Small firms rarely have the resources to push their technologies through a standards body the IBM and Microsoft can. Even Ogg Vorbis, which is not an international standard, may be left out of the mix. Just because they don't have that power, does it mean their technology shouldn't even be considered - even when it is the best option?
Second, the real crux of the problem with the EIF is that they have redefined the concept of open standards based on a lot of lobbying by Free Software ideologues. As you well know,
the definition of "open standards" used by the majority of the world's standards bodies INCLUDES the concept of RAND licenses. The EIF excludes any standards that require royalty payments of any kind or include any restrictions on use/redistribution. This is designed to meet the Free Software community's demand that EVERYTHING be implementable in GPL code. However, these requirements are both problematic and completely unnecessary.
It is problematic because so many of the world's most commonly used technologies are based on standards that do not meet the EIF's test. GSM, WiFi, MP3, Bluetooth, DVDs, etc., etc, etc. Does forcing Europe's government to find completely new technologies/standards really serve the need of IMPROVING interoperability for the purposes of governments and its citizens? I doubt it. And, if standards processes remove all possibility for royalties of any kind, companies will be much less likely to bring their best innovations to the table, and the standards themselves will suffer.
It is unnecessary because Open Source software plays perfectly well with RAND-based open standards and EVEN proprietary standards. As someone who is more of an Open Source pragmatist rather than a Free Software zealot, you're well aware that most enterprise class versions of Linux include proprietary components or simply non-GPL components in order to implement certain interoperability protocols. And, they work well! There is no need to force royalty free, restriction free standards in order to promote open source software. Yet, this misconception is fueling this policy.
These are the issues that need to be taken into consideration as part of any rational policy discussion. Yet, some want to treat these open standards policies as a religious issues that cannot be debated on the merits. Anyone that offers any criticism must be silenced or attacked personally/professionally. That is not the kind of democratic decision making process that benefits the people. In fact, it sounds an awful lot like the kind of politics that Europe and even now my fellow Americans are truly sick of.
Mark Blafkin
Association for Competitive Technology
http://blog.actonline.org/2008/07/european-commis.html
On the contrary, other than among those who continue to try to impose their intellectual monopolies, there is a general appreciation that for the first time, a level playing field for all is being created. RAND does not offer this - not least because it presupposes that those intellectual monopolies are actually valid, many of which aren't, since software cannot be patented in Europe.
For more on this, see http://www.computerworlduk.com/toolbox/open-source/blogs/index.cfm?blogid=14&entryid=989
1. Glyn, I'm happy to introduce you to many fellow Europeans that are not comfortable with the current direction of the EIF.
2. However, I never said that we were "sick" of the kind of approach being taken. So, please stop putting words in my mouth.
3. Newsflash - Europe allows software patents. You can call them whatever you want, but if you think European doesn't allow them you should do a little more research.
4. Please review my ACTUAL arguments about the practical problems this policy creates before responding again. I would love to hear you address them rather than simply pretending they don't exist. Hopefully, Matt will respond too so we can get a sense of how he sees this.
standard that favors one supplier is better is a ridiculous and silly argument.
Just because you own a toll bridge over the river does not mean you should be able tax people who cross my community built bridge for free. Most people would agree that my bridge is a much better deal.
Software patents are an offensive weapon that established companies use to maintain their market share against new participants in the market. They are also used by patent trolls to tax the information industry. Patents were created to encourage research and development. Writing code is not research, it is a creative endeavor more amenable to copyright law. Software patents are harming the information industry in the US and that is why the rest of the world is not adopting them.
As a mathematician, you should know that claiming all algorithms are same as natural laws and pure scientific knowledge is absurd. You're argument is essentially that all algorithms are merely the discovery of natures inherent laws and truths. If that were the case, especially in software, wouldn't there only be one true program for any one problem to be solved. As most programmers know, there are many ways to "skin the cat"... even when there are patents involved. Programming often involves real invention and creativity that is not simply stumbling on natures existing truths. If that is what you really think, do you believe there should be a patent system at all? If not, how do we incentivize companies to take the risk necessary to invent and be willing to share that knowledge with the world (as they are required to in order to get a patent). 2. Please Glyn. It is quite clear that when I said "?it sounds an awful lot like the kind of politics that Europe and even now my fellow Americans are truly sick of" I was NOT talking about this policy, but about the kind debate where "Anyone that offers any criticism must be silenced or attacked personally/professionally." So, were you deliberately trying to twist my words, or did you simply wind up in math because you failed reading comprehension? 3. First, the EPO is not the only patent office in Europe. (In fact, some of our members pushed the case in the UK to ensure the UKPTO continues to allow computer implemented inventions). Second, ask any patent lawyer working in Europe whether software can be patented through the EPO. You'll find that there are many, many inventions that have been implemented in software that the EPO has approved.
@kawabago - You're right that a format like Ogg doesn't NEED to be under an international standards body to be sufficiently open. Yet, Ogg may be unusable by European governments depending on the how this policy is implemented.
I never said that an encumbered standard that favors one supplier is BETTER. I said that open standards managed by international standards bodies that include RAND licenses should not be excluded simply because they include a small license fee. If there is another standard that is as good or better and is free of charge, then the government should use it.
I do think you're wrong about software patents on many levels. First of all, I go to a LOT of conferences around the world on innovation policy and economic policy. Universally, the question is "how do we make our information technology industry MORE like the US" not "how do we avoid the horrors of the US model." So, all this discussion about how software patents are killing the American software industry is well, overblown to say the least. Second, patents are FAR more important to small innovative software company than the Microsoft or IBM's of the world. In the globalized world, the Microsoft's of the world' can reverse engineer the work of small innovative firms relatively inexpensively and simply build it into their own projects and stomp out the smaller players. Patents give those innovators tools they can use to protect their inventions and give them leverage to negotiate.
Unfortunately the idea that one who disagrees should be silenced exists on both side of the argument as your shot at glyn's reading ability proves more than adequately.
So let's leave that one behind, shall we?
As for software patents killing the quality and competitive nature of the US IT industry I'll leave that to others who can demonstrate more convincingly than I that the mess in the USPTO. It's sufficient then, to say that the existence of patent trolls, the number of patents rejected on re-examination as a result of things like prior art, obviousness or existence in the public domain is simply far too high to lend credibility to the process as it currently exists.
Whether or not the discussion about the damage vs advantage that granting an intellectual monopoly on software through patents is a good or bad thing is overblown is going to continue here and elsewhere until we can see some proof that it offers a real economic advantage. Not to mention a broader social one as envisioned in the US Constitution with respect to encouraging the growth of science and technology.
Personally I have no problem with patents being available through RAND once accepted as an international standard as long as they are truly "reasonable and non discriminatory" which it is impossible to say they are now. In fact earlier you posted that you ought to be able to discriminate by adding restrictions. Given your opinion of the FSF and GPL I suspect it isn't hard to guess who would be discriminated against. (Completely ignoring that using patented software in a GPL v3 application cannot occur.)
For protocols which are provided in this fashion I'd have to see RAND as completely free of restrictions and the prices for RAND would have to be by a published schedule.
As for the Microsoft's of the world, particularly Microsoft we all know from their past and current method of operation that if they want access to a patented technology they simply buy the small company holding the patent and resolve it that way.
Repeating the often used shibboleth that patents protect the small fry from rampaging large companies doesn't change the track record that they do no such thing.
I'd be more concerned, if I were you, about Free and Open Source hackers/developers reverse engineering in a legal, clean room fashion.
As for your earlier assertion that all innovation happens in the private sector, and acknowledging a significant amount does not every entrepreneur or company opts to patent their development. That said you ignore the very significant innovation in computing in general and the internet in particular that occurs in universities and from non profits and is released without patent encumberment. I haven't noticed the World Wide Web suffering because W3C refuses to standardize on anything that is patent encumbered until that issue is dealt with. Without such things as RAND, I should add.
Finally I expect you to advocate for your membership and take positions that favours them just as BSA does for their members. I'd be shocked if you didn't.
That said, you do not speak for broader economic and social betterment as a whole with respect to patents, good, bad or indifferent, or the granting and enforcing of any other form of intellectual monopoly.
The EU must take that into account.
ttfn
John
You say: ?wouldn't there only be one true program for any one problem to be solved. As most programmers know, there are many ways to "skin the cat"?. There are in fact many ways to demonstrate any given mathematical truth: the truth is the same, but the method of deriving it can be quite different. As Richard Feynman once said with typical insight, you don't truly understand something until you understand it in many different ways.
As you rightly say, there may well be many ways to ?skin a cat?, and that's precisely the practical problem with software patents: they claim a monopoly on *all solutions, not just one in particular. This means they block all other solutions ? there is no way to program around them. If those seeking software patents were content with claiming a monopoly on just one solution, they could use copyright, which as you know, applies to code ? another reason why software patents are unnecessary.
As to the argument ?Programming often involves real invention and creativity that is not simply stumbling on natures existing truths?, the same is true of maths and physics: just because Einstein's Theories of Relativity involve extraordinary invention and creativity does not mean he should have been granted a patent on them.
It won't surprise you to learn that I'm no fan of intellectual monopolies in general; for a good exposition of why they don't encourage innovation, see Michele Boldrin and David K. Levine's ?Against Intellectual Monopoly? (freely available online at http://www.dklevine.com/general/intellectual/againstfinal.htm). What's the incentive to innovate? The competitive advantage it brings by being first: again, see the book above for details.
As for the UK PTO, here's what it says on software patents in Europe: ?The law on what is patentable is the same across the whole of the European Community, so if something is unpatentable under United Kingdom law, it will also be unpatentable elsewhere in Europe? (http://www.ipo.gov.uk/policy-issues-patents-computer.htm).
You say: ? the UKPTO continues to allow computer implemented inventions?, but as you well know, the critical word here is ?implemented?. This is part of the Jesuitical casuistry that patent lawyers engage in. The fact that the bizarre concept of ?computer-implemented inventions? has created an ill-defined boundary between what may or may not be patented (with courts constantly disagreeing on where that line lies) is ample proof that it is an absurd distinction, and nothing but a clever cheat to circumvent what is stated clearly by both the UK and European patent offices: that software cannot be patented.