Letters to the editor

Evidence for Red Hat's Mark Webbink's pro-software patent directive lobbying

www.no-lobbyists-as-such.com/florian-mueller-blog/red-hat-mark-webbink/
 
Evidence for Mark Webbink's pro-patent directive lobbying on July 5, 2005
 
July 3rd, 2006
 
In my previous blog article, I mentioned the fact that Red Hat's deputy
general counsel, Mark Webbink, lobbied in the European Parliament on July 5,
2005 (the day before the EP's decisive vote to reject the software patent
bill) to keep the software patent directive alive.
 
I had not anticipated the kind of Internet debate that this statement would
trigger, including some insulting emails that were sent to me, and least of
all I would have expected Mark Webbink to call into question the "veracity
of [my] statements", which is what he did in the discussion below this
LWN.net article. He knows exactly what he did.
 
The word "motivations" also appears in that posting. It's really simple: on
the occasion of a patent suit having been filed against Red Hat, I thought
it was time to tell the truth. Especially the free and open source software
(FOSS) community should know where certain key players stand. That will
better enable people to take a critical perspective on such initiatives as
the OSDL Patent Commons.
 
Contrary to what Mark Webbink claims, my related statements are not
"unverifiable". What he did on July 5, 2005 is a well-documented fact, and
here's some evidence:
 
From: [name and address of adviser to Michel Rocard MEP deleted]
Sent: Monday, October 31, 2005 2:53 AM
To: Florian Mueller
Cc: europarl-help@ffii.org
Subject: Re: Economist article - coordinated response needed
 
[cut]
Yes. The day before the vote, as I had been considered
by them as somewhat connected to Mr Rocard 8^) , I
have been quite heavily lobbied by a group comprising
Mrs Thornby-Nielsen (Sun), Mrs Moll (Google), Mr Webbink
(RedHat) and Mr Cox (IBM). All four had basically the
same concerns
[cut]
 
I have removed parts of the email and in particular the name of the author,
further to his request. He would prefer to stay in the background, like many
political advisers do. But europarl-help@ffii.org is a key mailing list of
European anti-software patent activists, and dozens of people received that
email directly. No one will seriously question its authenticity.
 
And here's an important excerpt from a follow-up email:
 
From: [name and address of adviser to Michel Rocard MEP deleted]
Sent: Monday, October 31, 2005 1:44 PM
To: Florian Mueller
Cc: europarl-help@ffii.org
Subject: Re: Economist article - coordinated response needed
 
[cut]
> They were against the rejection deal, right? I know that Mark W. and
> Charlotte T.-N. didn't want rejection.
 
It seemed so to me. All of them. Basically, it seemed
to me they were not likely to have no sotware patents
at all. The interpretation I gave Mr Webbink was that
it is not culturally acceptable, for most people that
come from the legal and patent world, to reject a system
from which one can make some money.
[cut]
 
I believe the above should eliminate all reasonable doubt about what
happened that day. While the FFII and I were asking everyone we knew in the
European Parliament to reject the proposed software patent directive, Red
Hat's Mark Webbink, along with representatives of IBM, Sun and Google,
pushed in the opposite direction.
 
So what did he really want to achieve? Someone pointed me to an article Mark
Webbink wrote and which in its paragraph #20 refers to the EU software
patent directive. He asks for a definition of the term "technical
contribution" (a key term in patent law) that "will eliminate the vast
majority of business method patents and will restore a substantial
non-obviousness test to software patents". If you read that carefully, it
means he accepts software patents per se. He'd just like to raise the bar a
little bit, and the FFII and I and all others who know how substantive
patent law is applied in practice can tell you that defining "technical
contribution" properly would not be a sufficient measure. It would just have
the desired effect as part of a coherent framework of patentability
criteria. Otherwise it's like a bucket has five holes and you close one: all
of the water will still go through the other holes.
 
In the same article, and in the Red Hat/Sun position paper that Mark Webbink
published again on LWN.net, a lot of emphasis is put on an interoperability
privilege. That, again, means to accept the patentability of software per
se, but to demand a carve-out for certain purposes. To the FFII and myself,
interoperability was not even a secondary priority. We focused on the
definition of what is patentable and what is not. If software is not
patentable at all, there's no pressing need for an interoperability
exception as far as we're concerned. Interoperability was exactly the area
in which the pro-software patent forces were most wiling to make a
concession if it allowed them to win the wider battle.
 
Finally, I'd like to reiterate what I said in my previous post: What Mark
Webbink did behind the scenes is not necessarily Red Hat's position as a
company, even though Red Hat has entrusted him with patent lobbying. There
are many people at Red Hat who clearly oppose software patents, and who
opposed the EU software patent directive, most of all Alan Cox.

Comments (1 posted)

FFII reaction to software patents/Red Hat controversy

(Enlarged board of the FFII in CC) Dear editors,

After reading some reactions at http://lwn.net/Articles/189693/ and seeing the way the FFII is being implicated in the ensuing discussion, we would like to make the statement you can find below.

Best regards,

Jonas Maebe Board member of the FFII

---

We, the board and membership of the FFII, who fought alongside many firms (including Red Hat) against software patents last year, and who are continuing the fight against software patents today, would like to state that:

1. During the second reading of the software patents directive last year, 21 compromise amendments (21CA) were tabled by MEPs following Rocard (Socialists), Buzek/Roithová (Christian Democrats) and Duff (Liberals), and also by the Greens, GUE/NGL and IND/DEM as groups. These amendments went straight against the Commission and Council's attempt to turn current EPO practice into law. The FFII fully supported these amendments.

2. Until the last minute, the FFII's strategy was to support both those amendments and rejection: we recommended both on the voting lists [PDF] we distributed to MEPs. Other people on our side chose to support only one of these options for either strategic or political reasons. The FFII considered both options a very good outcome, and would like to thank everyone who helped no matter which option they promoted.

3. The pro software patent lobby decided, on the eve of the vote, to start pushing for rejection rather than risk any of the 21CA being approved. This was in part thanks to the dual strategy of lobbying for both the amendments and for rejection: they were afraid that the 21CA would be approved, so they chose their second best option which happened to be fine for us as well (and MEPs knew that both were fine for us).

4. The lobbying by ourselves and others in favour of the 21CA by definition implied a position "to keep the software patent directive alive". This does not mean that these people, us included, were in favour of software patents.

5. In the end, only the MEPs had the decision taking power. The MEPs on our side were strong thanks to the widespread support which our platform enjoyed (SMEs, academics, IT professionals, the open source community, ...). Whether companies, organisations and individuals decided to formulate their support for our platform by promoting the 21CA, rejection or both was up to them as far as the FFII is concerned.

6. The final decision was dictated by on the one hand the balance of power within the political groups, and on the other the hand the unhappiness all MEPs shared about the Commission refusing their two restart requests. Rejection was therefore the ultimate compromise, and at the same time a strong signal towards the EPO stating "we are not turning your current practice into European law".

7. In conclusion: in July 2005 the FFII position was supported by Red Hat and Mark Webbink, and we have no reason to believe we no longer have their support today on the topic of software patents.

This side issue is regrettable and badly timed, considering that the EU Commission is planning to launch the next round of their pro software patents campaign next week in Brussels, promoting the European Patent Litigation Agreement (EPLA). The EPLA is an attempt to undo the work achieved last year in Parliament, and to institute software patents through the back door, by enforcing EPO case law across all Europe.

In a nutshell, the EPLA would remove all current national patent courts, put one European-wide patent court in its place and have the people currently running the EPO appoint its judges every six years. We therefore call upon all parties to work with the FFII to continue the fight against software patents in Europe and abroad and to support us this year, as they did last year, against the lobbyists of the patent establishment.

In the long term, the way forward is clear: build on the 21CA, and the related 10 core clarifications, to reinstate a proper basis for patent law and to avoid its extension into economic areas where it does not work. At the same time, the EPO must be opened up so it is no longer exclusively controlled by the patent establishment, as otherwise we keep trying to save a tree while letting the forest burn.

Signed,

The Board and Membership of the FFII

Comments (none posted)