Digital Majority

What is the greatest obstacle that the software patent Abolitionist movement faces? Is it the patent trolls, the governments for sale, the lobbyists, the patent lawyers, the Microsofts of this world?

Everyone understands why Microsoft seeks patents and invests richly to keep the system going. Everyone understands the motives of patent lawyers, of patent trolls. Everyone understands that people who's business depends on patents would be bitterly opposed to abolition.

In 2003 I wrote that the software industry was splitting into those who understood the future, and those stuck in the past. The rift between these two sides seems huge today.

Yet why are firms like IBM, Sun, Google, and Red Hat investing in software and business method patents, when the ethical and economic arguments clearly show that such patents can help the owner only at a cost to all society.

More to the point, why are these firms, which depend on the goodwill of the FOSS community, silent on the subject. Silent on the patents they own. Silent on the real threats to Linux and FOSS applications¹

For me, the greatest threat to the Abolitionist movement is not the "bad guys" who wear black hats and do stupid things like suing RIM, or TomTom. It is the "good guys", who silently collect patents, allow the Community to be scared into accepting that these "defensive" patents are necessary, and who keep a blanket of silence over the public discussion of software patent abolition.

And those who allow this, from the best motives, are part of the conspiracy. Those who invest in projects like Peer-to-Patent are part of the conspiracy. Those who write how OIN is a great achievement, how various "promises not to sue" are sufficient to waive all concern… it is these good willed people who are the problem.

The work - and greatest success - of the FFII has been to bring the issue of software patents into the public mind but it is an uphill struggle. Everywhere, people prefer not to confront this. They see Abolition as an overtly political issue. An extremist, uncomfortable issue that is bad for business at best, and suicidally stupid at worst.

In 2009, despite wide-spread understanding of the problems software patents cause, Abolition is still not on the political agenda. The large FOSS firms continue to invest in software patents and ignore opportunities for political reform. When opportunities do present themselves, these firms try to stop "business method patents" but not software patents.

Why is this? I think it is because these firms are deeply tied into the software patent system: they profit from it, and they enjoy the silence that allows them to build large "defensive" patent portfolios. There is also an element of elitism. The large firms, with their portfolios, can dominate the market and define the rules. They can absorb the pain of trolls. Mosquitoes. They can develop the patents into profitable licensing models. We are seeing the emergence of a new kind of open source, properly patented for its own protection. It may be Open, but it is not Free.

It is time to end the conspiracy of silence and force the discussion on the ethics of patenting software and business methods. No matter if this hurts firms who have invested in FOSS. No matter if this creates division and no matter if it is "bad for business".

I believe that the "bad behaviour of the good guys" is partially explained by a social trap type tragic situation. Companies depending of free software have a lot to loose with software patents. But they prefer to adhere to the battle instead of trying to stop it. The case of emerging countries like Korea or Brazil is exactly the same. They would benefit a lot from software patent abolition, but they typically prefer to show that they are able to play the game (imposed by the US) than to try to change its rules.

It's like a war situation, a country may prefer to buy arms than to struggle for a peace compromise even knowing that it will certainly loose more than gain with the war. The key issue is to see a possibility of gathering forces to struggle for peace: in the social trap situation, countries don't see this possibility. In our case maybe companies like Red Hat and Google don't see how they could strive for something they see so remotely possible (or rather independent of their actions) like software patent abolition. In addition I believe that for these companies — as well as for the countries mentioned — there is a fear that an anti-software patent action could reduce the chances of having their software applications accepted, which they need — as they say — for defense (in the proposed analogy it would be as if an arm dealer would refuse to sell weapons to countries which appear to be willing to stop the war).

If we accept this view, here is what can be done. A some entities like FFII, FSF, EFF can act as a grouping catalyst breaking this social trap, showing objectively that there is a way to collectively fight against what is bad for most actors: software patents in our case. In my opinion, instead of blaming these companies it is perhaps more likely to have their collaboration by proposing a double game. Yes, you can continue to apply for patents and use them defensively if you consider that so important. But at the same time do not abandon the most important battle which is to join forces abolish the madness of this system (which will abolish even the patents you are today applying for…)

So though I am very happy to read your blaming, I believe that it is easier to get an effective action plan by suggesting a double (cynical?) strategy of these companies. That is what I tell to the diplomats I meet.