letter to Guardian ?

[PILCH Hartmut <phm@a2e.de>]

Dear Guardian editors,

It is easy to point out most of the fallacies in McCarthy's letter to the
Guardian, even for the slashdot people,

    http://slashdot.org/articles/03/06/13/1946243.shtml?tid=155&tid=99

but they also overlook a lot of points.

Here are some preliminary comments, please do not publish them as a letter or
article yet but rather tell me whether something along these lines is of
interest, so that we can work out something better.

  Labour MEP Arlene McCarthy argues that harmonising laws across the EU will
  provide legal certainty for inventors

As we have pointed out many times, McCarthy's proposal harmonises nothing,
clarifies nothing, see

          http://swpat.ffii.org/papers/eubsa-swpat0202/amccarthy0305/
          http://swpat.ffii.org/papers/eubsa-swpat0202/amccarthy0302/
          http://swpat.ffii.org/papers/eubsa-swpat0202/amccarthy0206/

This text mostly consists of attempts to mobilise fears.  Most of the problems
which McCarthy outlines either do not exist or are unrelated to the remedies
which she proposes.  She must know this, since she is well aware of the three
above papers.

  Thursday June 12, 2003

  The Guardian

  As the European Parliament's draftsperson on the EU directive on the
  patentability of computer implemented inventions, I would like to
  correct some of the myths, misinformation and inaccuracies in last
  week's article by Richard Stallman and Nick Hill.

  First, the EU directive is not proposing to patent all software, it is
  limited to genuine inventions. Software as such cannot be patented.

In a public letter to McCarthy

   http://www.aful.org/wws/arc/patents/2003-06/msg00047.html

I pointed out a few horror patent claims, granted by the EPO, which clearly
relate to nothing but software as such (algorithms, business methods framed in
terms of general-purpose computing equipment and rules for using it) and
asked whether McCarthy thinks 
  
  - they should be patentable or not
  - McCarthy's proposal excludes them or not

She did not respond, but to any attentive reader it is clear that McCarthy's
proposal makes these patents inevitable.  

  Second, my "cosmetic" amendments to the European Commission text are
  proposing a more restrictive interpretation of the law in Europe, to
  try to stop the drift towards the US practice of patenting business
  methods.

While even under the current EPO practise (not to mention national practise)
there could still be a chance of having them revoked, once McCarthy's
proposals are made law, there is no longer a chance to contest these patents
anywhere in Europe.

  Third, I have included a new article to allow decompiling and reverse
  engineering as requested by computer programmers.

This is a lie in the narrowest sense of the word.

Article 6 was proposed by the European Commission, not by Arlene McCarthy.
All Arlene has ever done was to restrict the scope of the European
Commission's article.  Not at the request of programmers but rather at the
request of patent lawyers from large industry associations.

Moreover, Arlene McCarthy has staunchly refused to include an article
proposed by the Industry Commission (ITRE) which would really help safeguard
interoperability. 

  Fourth, this directive will not have any adverse effects on open
  source software development. Even in the US, where the patenting
  system is more liberal, the Linux operating system proudly declares a
  50% growth in world wide shipment of its operating systems, with the
  Apache system dominating the internet web server market with 66%
  market share. With a more restrictive EU law, the open source
  community has nothing to fear.

The law which Arlene McCarthy proposes is not a iota more restrictive than the
US law.  In fact it is the laxest patentability law of the world.  In the US,
the patentability rules are based on caselaw of a few courts, not on written
law, and there are moves to change them.  As far as software is concerned,
there is no significant difference between US practise and EPO practise, and
especially not between US practise and the laxist recent variant of the EPO
practise which Arlene McCarthy is pushing to codify.

  From medical inventions to household appliances, mobile phones and
  machine tools, inventions involving software are increasingly a fact
  of life. 

Nobody is challenging the patentability of inventions in the field of applied
biology, physics etc just because they involve software.

  With many of our traditional industries migrating to the Far East leaving
  behind job losses, we Europeans are having to rely on licensing out
  inventiveness to generate income and create jobs.

De-industrialisation is a real problem, but Arlene McCarthy's proposal
does nothing to solve it.  If anything, it aggravates it.

Economic studies show that patents have lead to a decrease in R&D spending in
the software sector.

Moreover it is known that 75% of the EPO's (illegally granted) software
patents belong to companies from US and Japan.  A recent study by Josh Lerner
(UK) moreover demonstrates that pro-patent policies have in the past tended
to weaken domestic patenting and strengthen influx of foreign patents.

Thus, if Arlene McCarthy has her way, Europe's software sector will most
likely be further weakened and large amounts of money will be transferred 
to the US and East Asia.  

Moreover, if we fail to create workable rules for the knowledge economy, even
these sectors will be outsourced to India and China, as is already happening,
and with them the patents.  How can one outsource intellectual work to East
Asia and have the related patents oneself?

This would mean that even the last havens of service economy where some
employment exists in Europe will be under foreign control, thanks to Arlene
McCarthy's policies.

All this has been said in two of the above cited critiques.  

  Numerous people from small to medium-sized enterprises have written to
  me in support of my proposal.

I would like to see these letters.  While there are many public statements
from SMEs against software patents, statements to the contrary are rare, and
most SMEs do not follow the intricacies of the debates at the European
Parliament.

There has been a so-called

      Joint Industry Statement
      http://swpat.ffii.org/papers/eubsa-swpat0202/ipat0304/

in favor of McCarty's proposal, which is full of false representation claims.

If anybody from SMEs wrote to Arlene McCarthy, I would suspect that the
letters were of the same nature.

  It is time some of the "computer rights campaigners" got real. Patents
  for software inventions will not go away. 

Nobody calls himself "computer rights campaigner".  I don't know what the
quote is referring to.

  It is infinitely better for the EU to harmonise laws across the EU with a
  view to limiting patentability, than to continue with the mess of national
  courts and European Patent Office (EPO) systems, and the drift towards US
  patent models.

The directive changes does not change the diversity of the European political
system.  On the other hand, Europe already has a unified patent law.

The proposed directive adds no unity and no clarity, as has been pointed out
convincingly by the scientists who wrote a study at the order of Arlene
McCarthy's legal affairs committee.  Arlene McCarthy seems to know better than
these scientists, but she never argues on what her knowledge is based.

  This directive will provide legal certainty for European software
  inventors. We have an obligation to legislate not just for one section
  of the software industry who seeks to impose its business model on the
  rest of industry, which moreover is not "free", but is actually a
  different form of monopoly by imposing a copyright licence system on
  users.

No section of the European software industry is so far based on patents.

All business models of the European software industry are based on copyright.

While some copyright licenses may be better than others, there is a consensus
in the software industry that "he who writes the code, gets to determine the
license, and nobody else gets to complain" (Linus Torvalds).

McCarthy seems to be citing Microsoft's campaign against the GNU GPL in order
to artificially stir up a flamewar on a point which is unrelated to patents.  

  We must legislate to ensure our inventors are not put at a
  disadvantage in the global market place. If we fail to offer European
  industry the possibility of patent protection, we will hand over our
  inventiveness and creativity to big business, who can cherrypick ideas
  and patent them. The perverse outcome would be that European
  originators of those inventions face infringements proceedings from
  the big players. It is this that will lead to job losses, less choice
  and higher prices!

This, if valid, would be an argument for introducing the US system in Europe.

But the argument is invalid anyway.  European players, be it big
business, small business and university students, are free to apply for
patents in the US.  US patents are even cheaper than EU patents.  They
may use these patents to attack companies in the US.  But if Europea does not
allow software patents, European business are safe from attacks and
"cherry-picking" in Europe. 

  If the EU does not take the step to develop its competence with regard
  to computer-implemented inventions, then the EPO and its board of
  appeal will continue to be the main arbitrators of the law. This will
  continue to create confusion and uncertainty and will sidestep the
  democratic scrutiny of the EU.

Arlene McCarthy herself has put her political skills at the service of a
large-scale attempt to sidestep democratic scrutiny of the patent institutions
in Europe, which has been going on since 1997 and before.  In return for 
competences in patent legislation, the EU is giving the European Patent Office
a license to grant enforcible patents on anything it deems to be "technical".

When people do not have a rationale for their proposals, they try to create
the impression that their is no choice or that the choice is dictated by
desequilibria, e.g. between industrialised and de-industrialised countries,
between big and small "inventors", between the US and European patent system,
between the European Patent Organisation and the European Union, as in this
last paragraph.  This also helps generate anxieties.  It is very similar to
the "Fear, Uncertainy and Distrust" (FUD) strategy known from a certain large
software company.

Arlene McCarthy's has consistently relied on a tactic of FUD since she became
the rapporteur of the directive last year.  During this time, she declined
invitations to 2 scientific conferences and 2 public hearings and done
everything to prevent public discussion of her proposals.  In parliamentary
meetings on her directive proposal, she has often been absent.

Recently she has resorted to provoking personal flamewars with her critics
outside the parliament and resorted to outright lies (including the lie about
her having inserted the decompilation provision into the directive).  Most
fellow MEPs are unaware of the flamewars, but they have heard Arlene McCarthy
complaining about how a group of "computer rights campaigners" is unfairly
attacking her.  This usually helps mobilise solidarity among MEPs.  In the
European Parliament, people from different nations come together and courtesy
is highly valued.  However a poor job the rapporteur did, usually all MEPs
from all parties will praise his "great work".  Few people will take a hard
look at a fellow MEP's behavior, and on the other hand they will measure
outside critics by their internal high standards of courtesy.

Arlene McCarthy's amendments are voted next tuesday.  In spite of what Arlene
McCarthy says in public, her proposals are designed only to ensure that the
broadest and most trivial patents on algorithms and business methods can not
be contested by any court in Europe.  Arlene McCarthy has steadfastly rejected
recommendations of other Commissions (Industry and Culture) and of other MEPs
from her group to limit patentability or to avoid extreme abuses.  Her reason
for rejecting them was that they are advocated by people who are attacking
her.  I think Arlene McCarthy is a rational tactician, a professional who puts
her skills at the service of certain political interests.  Her letter to the
guardian may be another shrewd move for mobilising whatever means she can to
ensure support among fellow MEPs.

Yours sincerely

-- 
Hartmut Pilch, FFII & Eurolinux Alliance              tel. +49-89-18979927
Protecting Innovation against Patent Inflation       http://swpat.ffii.org/
145,000 votes 400 firms against software patents     http://noepatents.org/