Miceli: The Software Patent Fairy Tale

[Seth Johnson <seth.johnson@RealMeasures.dyndns.org>]

> http://www.groklaw.net/article.php?story=20060115145429444
> http://www.groklaw.net/pdf/Swptft(final)(v2).pdf


Quietly Tying Down Gulliver - The SW Patent Fairy Tale ~ by
Cristian Miceli

Sunday, January 15 2006 @ 09:28 PM EST


Preface by Seth:

This is the best summary yet of the situation with software
patents in Europe, by someone who says he believes in the term
"Intellectual Property Rights."  :-)

This is a very, very definitive summary of the political history
and nature of the issue.

But what matters is that this article is the natural development
of the effective methods applied by the movement in Europe, where
the law stipulates that software is not patentable.  The movement
has been feeding the right messages since shortly before the
First Reading, and now the narrative is being fully presented. 
The lucidity of this article is stunning for anybody who has
watched the arrogant obfuscation that has pervaded the EU
political community and media regarding this issue.  But it's all
here.

I disagree with Miceli on a certain key point, when he says the
"CII Directive" was not killed by the anti-sw-patent folks, but
by a decision of the pro-sw-patent lobby to kill the Directive
when it became evident that they were about to actually achieve
clarity regarding how to handle inventions that contain software,
without making software patentable.

I like to emphasize that it was indeed the movement that
triggered that, that it was the specific decision to draw the
line by focusing on highlighting the contradictions throughout
the campaign, that both forced that moment to a head and made
this article possible.  This is how a principled movement was
created.  Once this occurred:

  - Many groups came together, including the free software
community which had long stood on principle and had focused on
meticulously building the constituency for software freedom on
that basis;
  - FFII transformed almost instantly once the decision was made;
with
    * the site growing intensely clearer; and
    * a critical move taking place away from legislative finesse
and negotiation, to movement-building that created a base of
power to speak from, based on clear line that communicated the
key principles through exposing of contradictions;
  - The nosoftwarepatents.com site sprang into existence, pulling
together the contradictions and myths that had become the focus
of the movement and becoming a powerful and succinct reference
point for the movement;
  - The media began to finally pick up pieces of the messages we
sought to convey due in no small part to the undeniability (and
yes, volatility) of the contradictions being highlighted;
  - The EU Parliament was politicized and made to recognize that
yes, they were indeed in a moment of supreme democratic stakes;
  - Through many developments, the final confrontation in the
Second Reading could not possibly have been clearer -- to the
extent that I felt many more of the remaining EP members who had
not come to comprehend the issue probably came to their clearest
understanding on that day;
  - And now, this article has come into being in a manner much
like the nosoftwarepatents.com site and the gradual transition in
the media coverage, compiling now for the legal community all the
pieces, all the myths and individual deceptions that the movement
has worked so assiduously to separate and expose and thereby use
to educate those they sought to influence.


So, a specific decision to use the traditional movement-building
technique of drawing a line that illustrates the principles by
exposing contradictions and blowing them wide apart, led to the
moment at which those who were trying to codify the bogus
practice of granting software patents at the EPO, were compelled
to withdraw the Directive by which they were trying to do that. 
The pro-software-patent side may have made that individual
decision, but they were put in the position of having to do that
because of how the movement created the moment with a kind of
surgical precision.

Anyway, enough of my pontificating.  This is a REALLY GOOD
article!  :-)


Seth