Interview: Ciaran O'Riordan of End Software Patents

Software patents were rejected several years ago in the European Union (EU) and undermined last year by the Bilski case in the United States. Under these circumstances, what direction should anti-software patent activism take? Ciarán O'Riordan, the newly-appointed director of the End Software Patents (ESP) campaign, answers that now is the time to organize the arguments and legal documents used in the past so that they can be used to fight the next software patent battles around the world. This material might be useful not only in the EU and USA should the status of software patents change in either jurisdiction, but also in the rest of the world.

O'Riordan began his career as a software developer with a strong interest in free software. In fact, he has membership card #8 in the Free Software Foundation (FSF), which indicates that he was one of the first to take out membership when it was offered. Moving from Ireland to Brussels in 2003, he found night time work in a bar. Increasingly, however, he found his days being filled by lobbying members of the European parliament as the debate over whether to allow software patents in the EU intensified.

"It was very strange," O'Riordan recalls. "In Europe we had the habit of reading Slashdot, and reading about all the crazy patents in the USA, and we all had a good laugh. Then, very suddenly, we were faced with our own software patent problem."

At first, O'Riordan's lobbying was volunteer work, in which he was simply "looking for the most important thing to work on." However, several months before the European parliament rejected the idea of software patents, he was hired as a lobbyist by Free Software Foundation Europe (FSFE), a separate organization from the FSF.

After the vote in parliament, he continued to lobby for FSFE whenever an issue emerged. The work, he says, "was very interesting and very important, and I found it wasn't very difficult. There was a bit of a power vacuum in the European Parliament, because people in Europe are not very interested in European politics. So when I asked politicians if I could talk to them, they were very available. So I was able to talk to various politicians, and I was able to get deeply involved in the topic, despite not having a background in patents."

Recently, O'Riordan has been studying law at Facultés universitaires Saint-Louis in Brussels and taking a leave of absence from his FSFE work. But when offered the position at ESP by the FSF, the campaign's major sponsor, he jumped at it. "Since it's a legal topic and the FSF is a good institution, I decided to give it a try," he says.

Phase 2 of the ESP Campaign

As the new director, O'Riordan replaces Ben Klemens, who was hired in November 2007 when ESP was first organized, and quietly departed in spring 2008 after preparing an amicus curiae brief in the Bilski hearing. "When the Bilski case was over, there wasn't a similar case in sight, so I guess that at that point he decided to move on," O'Riordan says, although he has yet to talk to Klemens directly.

O'Riordan now refers to Klemens's time as director as "the first phase" of ESP. In discussing the directions in which he might take the campaign, O'Riordan concluded that "in the next phase it would be a good idea to document what happened in the EU before all the documents completely disappear, and then do the same for the Bilski case. The Bilski case did its job in terms of influencing the court's decision. but it can also do a second job of aiding people all around the world who are working on similar projects. It seemed that an obvious Phase 2 would be to move from the specific to the general, and try to turn the previous campaigns into a base for future campaigns."

O'Riordan argues that such cataloging is badly needed:

Applying a global perspective

Admittedly, law can differ greatly between jurisdictions. All the same, O'Riordan suggests that ESP's new direction will be useful because most laws that concern software patents are based on international treaties. In Europe, for instance, most countries' patent laws are specific implementations of the European Patent Convention.

Similarly, given that patent law in most countries is often written ambiguously — it often pre-dates software — and is ill-equipped to deal with it, interpretation is essential. Most of the time, O'Riordan observes, interpretation is based on the question "'how do we harmonize with the rest of the world?'" — which, given the historical American dominance in trade, usually means "'how do we harmonize with the USA?'"

Even when laws and circumstances differ, O'Riordan adds, a global viewpoint can put matters into perspective. For example, the tendency of small and medium-sized American companies to support software patents — perhaps because they "are afraid of angering their mega-corporation business partners" — might be countered by pointing out that "small and medium enterprises aren't using software patents in Europe, Canada, or Australia. If we can build a picture from other countries, sometimes that can fill the gaps in the argument in one country like the USA."

In addition, O'Riordan hopes that ESP can provide a more accurate perspective. For instance, during the campaign in Europe, the fact that 77% of software patent applications in the EU were by American companies caused some observers to view the issue of software patents as a matter of American domination. However, if you take ESP's estimate on its home page that software patents cost the United States $11.2 billion, then you can establish that "it's not a case of one country taking over the world; it's a cost to everyone, and it's slowing down innovation. A lot of these arguments are actually improved by putting all the information together."

Looking ahead

To help with Phase 2, O'Riordan plans to extend the ESP's repository of information beyond the United States and Europe through a wiki that should be ready in the next few weeks.

"The first thing will be to find out what's happening already in people's countries," O'Riordan says. "For example, in the Philippines, does the patent office give out software patents? Well, I don't know. Who can I ask? So, in some cases, we're going to document what's not known, or at least what people or legal authorities or organizations we know in an area. We'll start with that and, when we have time to dig into each jurisdiction, we can start asking them questions."

As O'Riordan points out, there is no way of knowing beforehand what information might be found:

Other content for the ESP site might include advice about how to conduct a campaign and lobby politicians. "There are certain ways to talk to politicians," O'Riordan says. "They like hearing about studies, and they like hearing about legislation, legal wordings, and comparisons between other countries. They like hearing about these things, but, if people start without having these resources, then sometimes they can get off on the wrong foot."

O'Riordan also points out that politicians are not just a source of support, but also of advice about how to conduct a campaign. For example, in his own lobbying, the Green Party's explanation of how the European legislature worked was as important as the eventual votes of its members.

O'Riordan does not rule out ESP's involvement in specific campaigns. Recently, for instance, O'Riordan and other activists distributed a one page letter about Microsoft's patent case against TomTom at the company's Innovation and Growth Day in Brussels. "This is just a small way to keep the topic alive and always remind everyone that there are people against software patents."

However, ESP's main focus for now will remain education and gathering of information. Although the issue of software patents is relatively quiet now, O'Riordan does not assume that it will remain so. "The European Commission [the EU executive] will change in November , and the European patent office is having a consultation about this topic, so there's a chance that the topic will come back on the table. There's also a small chance that the [American] Supreme Court will review the Bilski decision. So now is a good time to talk stock and to prepare for possible new campaigns."

Moving into Phase 2, O'Riordan counts on the support of the free software community. "The free software community tends to understand these issues very quickly, so it's very useful, because these people get active a lot easier than people who are new to the topics of freedom and software." At the same time, though, he stresses that ESP is not directly connected to the FSF, nor aimed only at free software users. The goal of ESP, O'Riordan says, is "to build a real coalition, to really convince the politicians that this is something that effects everyone — every computer user, and every business." And, for now, the best way to reach this goal, according to O'Riordan, is to prepare the ammunition for the next campaign.