Patents as a threat to Free and Open Source Software

By Florian Mueller

April 3, 2010

I'm starting this blog to provide commentary on future developments concerning how patents affect developers and users of Free and Open Source Software (FOSS).

I also plan to discuss ways to deal with the threat patents pose to FOSS. I will unsparingly expose any attempts to lull the FOSS community into a false sense of security because what FOSS developers and users really need are serious, reliable solutions -- and honest intentions on the part of major patent holders.

Patents are a threat to all types of software, not only to FOSS. But there are reasons for which the "relationship" between FOSS and patents is very special. Let me tell you about my experience in this field.

The fight against a European software patent law

When I founded the NoSoftwarePatents [ http://www.nosoftwarepatents.com ] campaign in 2004, the European Union was in the midst of a legislative process. Officially, the proposal was called the Directive on the Patentability of Computer-Implemented Inventions [ http://en.wikipedia.org/wiki/Proposed_directive_on_the_patentability_of_computer-implemented_inventions ]. Colloquially, we (the opponents of the proposal) called it the "software patent directive" because that's what it was all about. The only thing that can be implemented on or in a computer is software. Everything else can at best be computer-aided, not computer-implemented.

Fortunately, we prevailed and the proposal was rejected by the European Parliament [ http://www.theregister.co.uk/2005/07/06/eu_bins_swpat/ ] in July 2005. Until this day, it is the only instance that the directly elected representatives of European citizens threw out a legislative proposal from the then 25 (now 27) EU Member States at second reading, without even going into conciliation (a negotiation process between three EU institutions, which is where proposals usually go if there's a major disagreement).

That "No", supported by 648 MEPs out of 680 present for the vote, came across clearly. Almost five years later, there still hasn't been any new proposal along the lines of the software patent directive.

The backers of the proposal downplayed the strength of our resistance movement by claiming that "only open source" was against the bill. They said so because they wanted to limit our appeal to pro-business politicians, especially in the center and on the right wing. They wanted to portray open source as an anticommercial movement that, unlike big business, didn't represent substantial revenues nor many jobs. Partly as a reaction to that attempt, anti-patent activists positioned their cause as an SME (small and medium-sized enterprises) issue.

The truth is that even some closed-source SMEs supported the movement, but more than anything else it was indeed a victory for the FOSS community, which always had its reasons to be particularly concerned about software patents.

FOSS developers dread patents

One reason for the demonstrable aversion of FOSS leaders to software patents is that it's easier to detect and prove patent infringement if the source code of a program can be inspected. Another one and even more important reason is that FOSS has become so widely adopted by governments and enterprises that it threatens some entrenched monopolies. Every single patent is a little "monopoly" of its own, and if a monopolist manages to create what is called a "patent thicket" in a certain segment of the technology space, it can shut out competitors. Between big players, patents can be cross-licensed. But FOSS projects generally don't have the infrastructure, methodology and resources in place to build their own defensive patent portfolio.

Linus Torvalds once summed it up [ http://www.macworld.com/article/41004/2004/11/torvalds.html ] very well: "Clearly the open source 'way of life' is much less amenable to software patents than proprietary software is."

Without a doubt, FOSS luminaries were the most prominent opponents of the EU proposal on software patents. Some FOSS leaders, such as Richard Stallman and then-Linux kernel maintainer Alan Cox, traveled personally to Brussels and other European cities to speak at events and lobby politicians. Linus Torvalds and, again, Alan Cox wrote an open letter [ http://www.effi.org/patentit/patents_torvalds_cox.html ] to the European Parliament in 2003. A year later, Linus Torvalds co-signed an open letter [ http://www.zdnet.co.uk/news/regulation/2004/11/23/linus-torvalds-speaks-out-against-eu-patent-law-39174746/ ] to the EU Council (another EU institution) with Monty Widenius (MySQL) and Rasmus Lerdorf (PHP). The letter was published on NoSoftwarePatents.com. At the time I was still running that website. A few months later I handed the site to the FFII (Foundation for a Free Information Infrastructure) [ http://www.ffii.org/ ], a non-governmental organization that still fights against software patents in Europe.

Unpaid open source activists made it happen

I had become aware of the patent threat and involved with the fight because I was an adviser to (and small shareholder in) MySQL, and MySQL's founders had already supported the League for Programming Freedom [ http://progfree.org/ ] a long time before. My campaign received financial support from several companies. The biggest contributor in absolute amounts was 1&1 Internet [ http://www.1and1.co.uk ], Europe's leading web host. They use open source technologies, which was their primary reason for backing the cause. By far and away the biggest contributions relative to company size came from MySQL. For a limited period of time, Red Hat also contributed.

In terms of financial commitments, proprietary vendors played hardly any role. Many people including me made a lot of effort to convince proprietary software companies that they, too, should be concerned about patents. But even if they spoke out against software patents, they generally weren't willing to spend any significant amount of time and money. That experience was by far and away the most frustrating part of my campaigning efforts. At some point I had enough of it, quite frankly.

With a very few exceptions, it was only the FOSS community that really took political action. Without the countless unpaid hours spent by FOSS activists across Europe and even from outside of Europe to influence the process, the resources of the resistance movement would have been insufficient to oppose essentially the entire information and communications technology industry. All those activists knew that FOSS was particularly threatened by software patents. They traveled to Brussels and Strasbourg to meet MEPs; they visited MEPs in their constituency offices all across Europe; they wrote emails and letters; they contributed content and translations to websites; they ran banner campaigns to generate additional attention; they emailed and called journalists; and so forth.

Today's situation

As we speak, there is no legislative process going on, at least not in any major market, that would deal directly with the question of whether software is patentable. Software patents exist. Hundreds of thousands, if not millions on a worldwide scale.

The question is now where the threat exactly comes from and what the FOSS community can do to protect its projects (and the people and companies behind the projects) against the threat.

Florian Mueller is a software developer and government affairs professional. In 2004, Florian founded the NoSoftwarePatents campaign, which contributed to the European Parliament's rejection of a proposal for European software patent legislation. At the time, Florian was an adviser to, and small shareholder in, MySQL AB, the company behind the popular open source database. For his forceful opposition to software patents, he received several awards, including the European Campaigner of the Year 2005 Award (Economist Group) and CNET UK's Outstanding Contribution to Software Development Award. Florian was twice nominated to Managing Intellectual Property magazine's annual list of the top 50 most influential people in IP.