A few weeks ago, I wrote about the major setback the proposed European software patent law had suffered at the hands of the elected European parliament and congratulated Poland for being a major obstacle to its adoption.
But it turns out that my pirogies and Polish beer celebration was very premature. Like the bad guy in a slasher film, the proposed European software patent law has proven impossible to kill. And now, like Jason or Michael Myers, it looks as if it will be nearly impossible to stop.
The last few weeks have turned out to be quite an education on how democracy works in the European Union. I hope I can be forgiven for thinking that software patents in Europe were dead in the water after they were overwhelmingly rejected by the Legal Affairs Committee of the European Parliament and a strong majority of the parliament itself.
But it turns out that the European Parliament, the part of the European government that is actually elected by the people, has very little power in comparison to the unelected bureaucrats in the European Commission.
After the parliament requested that the current software patent proposal be scrapped and that the process for a software patent law restart in the parliament, the unelected European Commission completely rejected the parliaments request and moved ahead with pushing through the old software patent law. I also wouldnt be surprised if the European Commission then laughed at the parliament, mooned it, and said that the parliaments father was a hamster and its mother smelled of elderberries.
Then, on March 7, the European Council—which could have stopped the proposed software patent law—refused to do so, essentially on the basis that it would set a bad precedent for stopping future ill-conceived laws.
So, now, the anti-patent forces in Europe are in pretty dire straights. On the plus side, the parliament has already voted against the software patent law and is probably a little peeved at being completely ignored by the European Commission. But on the negative side are the considerable limitations that European law places on the parliaments ability to alter proposed laws at this point in the process.
To reject or even amend part of the proposed software patent law, an absolute majority of the parliament is required. This means that if 200 of the 367 members of parliament show up for the vote and 150 vote against the patent law, it will still pass because every absentee will count as a yes vote.
So while it wouldnt be impossible for the European Parliament to amend or reject the patent law, it is very unlikely. The main hope is in the parliaments anger at being ignored by the European Commission. Anti-patent forces in Europe will have to work hard to lobby their representatives in parliament and make sure that all those opposed to the law show up when votes take place.
And those of us in the United States will have to hope that these forces are successful. As I said in my previous column, if Europe rejected software patents, it could potentially be a strong force in reforming the broken software patent system we currently have in the United States.
If the European law passes, U.S.-style software patents will spread through even more of the world. Innovative and small software firms that recently thrived recently in Europe will face a potential onslaught of broad and obvious patents from U.S. companies. And the law could be used directly to limit or prevent the spread and growth of open-source software.
As Ive said before, patents in software make very little sense. Imagine if Raymond Chandler had patented the dangerous woman or Alfred Hitchcock had patented long, unbroken film shots or if the Beatles had patented the verse-chorus-verse pop song? Most people would consider patents for these and similar things to be silly, but they are very similar in scope to many software patents. Thats why—as in books, movies and music—the proper intellectual-property protection for software is copyright protections, not patents.
Supporters of the proposed European software patent law have said that its passage is needed for Europe to become a dominant business force. But if this law isnt overturned, many European-based firms could go out of business or be consumed by large U.S. software firms.
And then the only dominant force in Europe when it comes to software will be big American companies.
eWEEK Labs Director Jim Rapoza can be reached at [email protected].