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Simon Phipps

With a focus on open source and digital rights, Simon is a director of the UK's Open Rights Group and president of the Open Source Initiative. He is also managing director of UK consulting firm Meshed Insights Ltd.

The Software Patent War Escalates

Yahoo's assault on Facebook highlights another problem with attempts to escalate patent and copyright penalties.

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One of the things that makes me most wary of the new legislation that corporate media and software companies support is the way they are behaving under the existing laws. As Doc Searls recently wrote, we are edging towards a fully licensed world, where all actions we take concerning copyrighted artifacts are controlled - and not just their original manufacture for distribution. Because of the way the English language uses the word "copy" to mean 'use electronically' as well as 'manufactured physical reproduction', copyright corporations have felt justified to seize control of culture in ways that exceed the most evil dreams of their predecessors.

Patents Are Worse Than Copyrights

While much of the focus has been on copyrights, we also need to consider the threats from patents. Each of the attempts at blanket legislation frames it as a need to protect "Intellectual Property", a term coined to associate various forms of intellectual monopoly - copyrights, patents, trademarks and more - which although conceptually unrelated are all sources of control for corporations whose income depends on exploiting that control. Patents are already primarily a weapon to chill fair competition rather than a protection for innovation. Just consider a few recent examples:

The companies involved know what they are doing looks bad, so increasingly they work through proxies to try to hide their anti-competitive behaviour. But ultimately corporations are not people but machines, behaving more like reptiles than humans despite being treated as people by the law. As a consequence, they try to justify their actions by claiming that in some way a competitor is "stealing their ideas". But that's rarely the case. As Timothy Lee explains in an excellent article in Slate:

"While copyright law has served the software industry well, the same is not true of patents. Copyright protection is granted automatically when a work is created. In contrast, obtaining a patent is an elaborate, expensive process. Copyright infringement occurs only when someone deliberately copies someone else's work. But a programmer can infringe someone else's patent by accident, simply by creating a product with similar features."

How To Respond

The EFF has a good summary of the problem that software patents pose in a connected society (and a great flow chart). They suggest a strategy of which I believe the Debian project's approach to software patents is an exemplar for open source projects. In summary it says: Shun software patents, reject attempts to force you to license them if you can, avoid allowing fear of them to shape your actions, use attorney-client privilege to protect you if you are ever concerned about them.

So in the light of all that, we should be exceptionally concerned of any clauses that involve patents in treaties like ACTA, SOPA, TPP and the ones that will inevitably follow when those are defeated. There are people acting on behalf of large corporations to lobby for patent infringement to be criminalised; for patent infringement to be policed by customs officers; for police units to be set up to address patent infringement;  for arrangements where accusation alone is sufficient to bring sanctions with little effective recourse. Just like for copyrights.

The people doing this advocacy used to work for industry consortia like the BSA, but increasingly they are twice removed from them to avoid easy connections being made. Politicians and civil servants may be unable to identify the links back to industry in these cases, and are consequently surprised when opposition appears as if from nowhere. They are being told by whisper campaigns that powerful newcomers like Google are behind this opposition.

It's taking quite some time for the realisation to dawn that the opposition to draconian and toxic escalations to copyright and patent law is not being orchestrated by any corporation. Rather, the connected society is providing a voice for citizen consensus, perhaps for the first time since ancient Athenian democracy.  Thank goodness for that openness; no wonder lobbyists and paid consultants are working to limit that too.


If these topics interest or frustrate you, you'll probably also appreciate the Open Rights Group conference, ORGCon, this Saturday in London. Some great headline speakers as well as plenty of other sessions. See you there (I'll be moderating the open source session)! 


Follow Simon as @webmink on Twitter and Identi.Ca and also on Google+


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