Linus Torvalds and two other European software luminaries have thrown their weight behind a campaign to block software patents from being legitimized in Europe, ahead of a critical European Competitiveness Council decision later this week.
On Thursday or Friday, the Competitiveness Council is expected to decide whether to formally back-draft legislation on “the Patentability of Computer-Implemented Inventions,” which received the tentative approval of the EU Council in May. In the long EU legislative process, this would amount to a significant step forward for the controversial proposal, which many argue would open the floodgates to software patents if approved in its current form.
In a statement published on Tuesday, Torvalds, the inventor of the Linux operating system kernel, along with Michael Widenius, one of the creators of the MySQL database, and Rasmus Lerdorf, creator of the PHP scripting language, urged the EU Council to prevent the proposals adoption. “In the interest of Europe, such a deceptive, dangerous and democratically illegitimate proposal must not become the Common Position of the member states,” they wrote.
“The draft directive in question is deceptive because it leads laymen, and even those legal professionals who are not familiar with the intricacies of patent law, to falsely believe that it would exclude software from patentability,” the statement read. In fact, the proposal would legitimize the practice of patenting software and business practices, which has already crept into European Patent Office practice, they argued, reiterating the position of most of the proposals critics. The proposals backers deny that it would allow software patents.
At stake is whether software patents will be officially allowed and enforceable in Europe, as is already the case in the United States. Many companies, including American IT giants such as Cisco Systems Inc., oppose software patents on the grounds that they stifle innovation and shut out smaller competitors, requiring companies to build up huge patent portfolios in order to defend themselves from legal attacks.
“Software patents are dangerous to the economy at large, and particularly to the European economy,” Torvalds, Widenius and Lerdorf stated. “Lawmakers should heed the warnings of such reputable organizations as Deutsche Bank Research, the Kiel Institute for World Economics, and PricewaterhouseCoopers. A software patent regime would establish the law of the strong, and ultimately create more injustice than justice.”
Open-source software is considered by many to be particularly threatened by software patents, since it depends on the ability of organizations to use the code without licensing restrictions. Last week, Microsoft chief executive Steve Ballmer, at a meeting of Asian government leaders, cited a controversial study done earlier this summer that claimed that Linux could potentially violate more than 200 software patents.
The developers urged Web administrators to back the EUs No Software Patents campaign by linking to its Web site, where the statement was first published. Campaigners hope the Competitiveness Council will refrain from adopting the proposal this week, sending it back to EU Council representatives to hammer out a version that allows computer-related inventions while specifically barring software patents.
If the Competitiveness Council adopts the proposal, it will pass back to the European Parliament for a second reading, where MEPs (Members of European Parliament) could still make substantial alterations. Last year MEPs approved a version of the draft legislation that barred software patents, but this was rejected by the EU Council. It would be more difficult for the parliament to make such changes again because the majority needed to approve proposals on a second reading is more difficult to achieve than that for a first reading.
Once the EU Council reaches a “political agreement” to back a proposal, as happened in May, the proposal is rarely rejected or even voted on before it officially becomes EU Council policy. In this case, campaigners say an unprecedented technical fluke has given them reason to hope.
In May, EU Council members supported the proposal by 89 votes, one more than the 88 needed for a qualified majority. If the Competitiveness Council had officially backed the proposal during the next five months, it would have gone through without a vote—and without a controversy.
However, a delay in translating the needed documents pushed the Competitiveness Council decision into November. This has made all the difference because new voting rules that came into effect on Nov. 1 have destroyed the proposals earlier qualified majority, according to Florian Mueller, the campaign manager for No Software Patents. According to his analysis, available on the campaigns Web site (PDF), the proposal now falls 16 votes short of a qualified majority. Poland last week officially declared it could not support the proposal. “Because of numerous ambiguities and contradictions respecting the current directive project, Poland cannot support the text which was accepted in the vote of the Council on 18 May 2004,” the Polish Council of Ministers said in a statement.
The lack of support means that the Competitiveness Council cannot support the proposal without a vote, as planned, without going against the most basic principles of democracy, Mueller argued. “There is no longer a qualified majority, and in a democracy that is important,” he told eWEEK.com in a telephone interview.
The proposal will be formally adopted unless an EU Council member formally requests that it goes to a vote or takes behind-the-scenes actions to withdraw support. However, Council members may choose not to rock the boat, Mueller admitted. “Countries could decide that keeping the working methods of the Council intact is more important than this directive,” he said.
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