From: "Joe Barr" 

     Bruce Perens
    (US) 510-526-1165
    bruce {at} perens.com

ALERT
5-May-2003
You may re-publish this message or excerpts of it. FALSE OPEN SOURCE
REPRESENTATIVE CALLS FOR EUROPEAN SOFTWARE PATENTS

A false or misled "open source representative" has signed an
industry resolution calling for the EU to allow software patenting, which
has been sent to members of the European Parliament. Copies of the
resolution are here and here . The European Legal Affairs Committee holds a
plenary vote on software patenting this Wednesday, and may have been
influenced by the false representation.

Graham Taylor is director of Open Forum Europe, an organization that is
claimed to work for broader acceptance of Open Source. Open Forum Europe is
a division of IT Forum Foundation and InterForum. InterForum's membership
includes a number of large companies that have a vested interest in the
promotion of software patenting in Europe.

I would encourage Mr. Taylor to evangelize Open Source software. However,
he does not have the credentials to represent the Linux, Open Source and
Free Software developer communities, especially when he contradicts our
extremely strong opposition to software patenting. It does not appear that
Mr. Taylor has any engagement with Open Source projects and developers, or
that he brought this matter up with representative organizations such as
the Free Software Foundation, the Open Source Initiative, and Software in
the Public Interest.

Software patents could be fatal for Open Source software in the U.S. and
Europe. Since we do not collect royalties from the distribution of our own
software, we have no funds to pay royalties to patent holders. Rather than
sue us to collect money, expect patent holders to sue Open Source
developers to restrain them from distributing their software or carrying
out further development. Companies that produce proprietary software would
bring that sort of suit to kill us off as a competitor.

While we can sometimes work around a patented algorithm that we know about,
the Open Source developer is not able to defend himself from patent
infringement claims, even invalid ones. In the U.S., the cost of a patent
infringement defense often exceeds US$500,000. Thus, the Open Source
developer, often an individual working on his own time, is generally
compelled to settle with his accuser, regardless of the merits of the case,
in order to preserve what assets the plaintiff deigns to leave him. The
copyrights of his own software won't be among those assets.

We are especially threatened by royalty-bearing software patents that are
embedded in industry standards. In many cases, it is impossible to achieve
compliance with a standard without infringing upon the patented algorithms
that are specified by that standard. Standard compliance is critical for
interoperability, and thus software patents in standards can make an
un-communicating island of a Linux system. For example, the IEEE 1488
FireWire standard is encumbered by patents that apply to the software
interfacing to it, and a patent royalty pool is operated in connection with
that standard. Linux implementations of FireWire are potentially
infringing, and prosecution could result in our software becoming legally
unable to access FireWire devices.

We can not expect our industrial partners, such as IBM and HP, to help with
patent defense or with the matter of software patenting in general. While
those companies are often our friends, their interests also come into
conflict with ours. Some of them use software patents to generate revenue
or provide monopolies for their businesses. Thus, IBM has been calling for
increases in software patent-ability, despite the fact that this is
contrary to IBM's involvement in Open Source.

We also can't expect those companies to go against their own business
partners in our defense. In 2002, Microsoft informed its business partners
of its plans to bring patent infringement lawsuits against Open Source
projects, an intention that it had made public as far back as 2001, in an
appearance by Microsoft V.P. Craig Mundie at an Open Source conference.
Microsoft is probably holding off enforcement until the question of
European software patent-ability is settled, lest they dissuade Europeans
from allowing software patenting. Last year, HP signed a
"non-aggression pact" with Microsoft that may prevent them from
assisting us in the future. It's unknown whether IBM would be interested in
opposing Microsoft to protect an Open Source project or an individual Open
Source developer.

One problem we have in holding off software patents is that we have little
damage to show so far. Although at least one company has made its plans
clear, there has been little prosecution of Open Source developers for
patent infringement so far. My surmise is that anyone who has a patent to
prosecute will hold off until the European software patent decision is
made. They wouldn't want to provide evidence against the very laws they are
seeking.

Thus, software patents present a tremendous threat to Open Source, perhaps
a fatal one once Europe joins the U.S. in broader software patenting. Yet,
the letter signed signed by Mr. Taylor proposes no real protection for Open
Source, only that the government monitor for damage and publish reports.

In correcting the actions of Mr. Taylor, I should explain who I am and what
right I have to represent Linux and Open Source developers.

I have been a speaker for the community of Open Source developers and
programmers since 1993. I am co-founder and elected director of Software in
the Public Interest, Inc., a tax-exempt non-profit organization that
supports a number of prestigious Free Software projects. SPI's members are
individuals, most of them authors of software that they have contributed
under an Open Source license. I am the creator of the Open Source
Definition, the manifesto of the Open Source movement in software. I
contributed my first Free Software in 1987, and have been a major Linux
developer since 1993. Free Software that I've written is in widespread
commercial use and has flown on the Space Shuttle. You can see my resume
here.

I generally act on consensus of a larger group of leaders including members
of the Open Source Initiative, Software in the Public Interest, the Free
Software Foundation, and various software projects. I have issued this
alert individually because it regards a government decision less than two
days away, but will consult those organizations regarding how to proceed.

In writing this alert I am relying on information provided by

    * Hartmut Pilch, FFII & Eurolinux Alliance * Bernard Lang
    * Francois PELLEGRINI

You can reach me vie email to bruce {at} perens.com or phone 510-526-1165 (US
Pacific time zone).

    Bruce Perens

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