Fighting software patents: a report from Brussels

First, a little background for context. Last year saw the Foundation for a Free Information Infrastructure's (FFII) campaign against software patents take center stage in the hacker world as the European Parliament began to debate the issue. After frenzied lobbying in late August and September, an amended piece of legislation was passed, explicitly banning software patents.

But the victory was short-lived, as the European Council and Commission took the bill and published their interpretation, removing all of the amendments the anti-software patent activists fought so hard for. A lot of EU legislation goes through this sort of complex procedure, known as "co-decision", where the legislative and executive branches both develop the legislation.

On the morning of Wednesday, April 14, a demonstration launched two days of protests and discussion to counter the Council and Commission's position. The demonstration itself was a visual but low-key event, with between 500 and 800 people marching around Brussels with yellow balloons, banners and a few sandwich boards. The march culminated with a pantomime outside the European Commission, satirizing the Commission's tendency to listen to big business (principally Nokia) rather than Small and Medium Enterprises and individuals; there was also a human chain and an en-mass balloon release.

Almost as soon as it had finished, we entered the European Parliament for the conference on software patents, organized by the FFII and the International Institute of Infonomics. The purpose of the conference was to bring key activists, MEPs and experts together to continue the discussion of software patents in Europe, and to try to measure the effects of the two competing legislations (Parliament's and the Council's).

The first panel, discussing "Recent Developments in Granting and Use of ICT Patents", gave software patent experts, business owners and activists a chance to clarify the extent of patent granting and the effects it has already had on business in Europe. The presentations were informative, though not controversial for the majority of the participants; they indicated that approximately 20,000 software patents have been granted in Europe, and that, though unenforceable, they have already done considerable damage to many small businesses. Most of the problems seemed to be caused by companies needing to file software patents as a means of defense against litigation, and to counter other companies' patent portfolios.

The second panel, discussing "EU Legislation Benchmarking: Parliament's vs Council's version of Software Patent Directive" was perhaps more interesting. Sitting next to anti-software patent law scholars and activists were representatives from the European Commission and the European Patent Office (EPO). The law scholars and activists described, from an academic rather than a pragmatic point of view, why software is un-patentable, and why the software industry doesn't even need them. Then we listened to the EPO claim that they didn't file any software patents, and that they saw the legislation as a clarifying exercise, and the Commission claim, with little substantial argument or empirical evidence, that their legislation would help the industry. Commission representatives also implied, amazingly, that the legislative process in this case ought to aim to settle the issue soon rather than take the time to approach the problem more carefully.

The third and final panel discussed "Competitivity of Knowledge Economies", and gave MEPs and economists the chance to present their views on where software patents lie in the broader picture of Europe's "ICT economy". Moving away from arguments about software patents per se, they presented various analyses of how European industry might lose out in the future if software patents were introduced.

The next day, we attended a second conference, organized by the FFII and the Green-EFA Alliance, focusing on the place of free software in Europe in general. The day opened at 9am with a series of presentations from GNU/Linux User Groups (G/LUGs) from around Europe, explaining to the many MEPs, Parliamentary assistants and other outsiders what G/LUGs are, what they do, what free software is, and how the free software community works. In contrast to the previous day's conference, there was a good opportunity for discussion, and many activists got the opportunity to discuss how G/LUGs can improve their relationships with each other, and with the EU.

Following this, there was a rather anarchic installfest. Various MEPs had Mandrake Linux installed on their PCs, while the rest of the conference's participants milled around talking to each other, and in my case, phoning more MEPs for meetings.

The conference reconvened after lunch, for three more panels. The first was on "Fair Use / Copie Privée, and proved, for the geeks in the room, far more familiar. A lawyer from the EFF, Jon Lech Johansen (DeCSS) and a lawyer from Test-Achat, a Belgian civil rights group, discussed with the floor the state of "fair use" law within the EU, touching on DVDs, audio CDs and DRM in general. Aside from general discussion, we were treated to a brief exchange between the EFF and a person defending Blizzard's case against bnetd.

The second and third panels continued in much the same vein, discussing free and open source software in Europe. The afternoon produced a growing consensus that we ought to be pushing for Free Software in the public sector across Europe far harder, and seemed to bolster the support from MEPs. By the end of the conference, most seemed considerably more excited by the future than before.

But aside from the many discussions, it is important to ask: what did the two days achieve? We cannot defeat the European Commission and Council over software patents, and place Free Software at the heart of Europe's ICT economy, with words alone. Fortunately, though no major tangible breakthroughs were made, the community came away with a lot of substantial work done, and some good plans for the future.

G/LUGs across Europe, through Eurolinux and the FFII's mailing lists, will be drafting strategies to work together to promote Free Software more effectively, drawing on each others' successes. A first draft of such a document was written during the conference, and translated into two or three languages by willing hackers. The FFII is now leading a project tentatively called the MEP Toolbox, to develop a comprehensive database of MEP's positions on important digital rights issues, and an accompanying lobbying guide for inexperienced hackers. And, as a personal measure of its success, during the recent Linux User & Developer Expo in London, the FFII-UK, the UKCDR and the AFFS got their heads together (one of which being mine) to work out a more effective strategy of cooperation and campaigning.

So long as the enthusiasm can be maintained, and promises and ideas developed in Brussels can be turned into concrete deeds, the future in Europe certainly looks a lot brighter than it did a few weeks ago. We may have the beginnings of a Europe-wide movement that can effectively tackle digital rights issues, and push Free Software. We just need to ensure we don't renege on our promises.