At FOSDEM last week, I presented the FFII's new Campaign for Ethical Patents, aka EthiPat. EthiPat presents the case against today's patent system in an unusual way, by listing the ways in which today's patent system discriminates against different parties:
The European patent system discriminates against:
- The Public, by letting those who benefit from the patent system set the rules for everyone.
- Real innovators, by granting patents too easily and in areas where patents are not needed.
- Fast-moving industries, by pretending that one size fits all.
- The free market, by granting overbroad monopolies that lock out innovation and competition.
- Smaller businesses, by creating risks and costs that small firms cannot afford.
- Open research, in software, medicine, and more, by blocking the free flow of ideas and knowledge.
Is ethics only about discrimination? Perhaps it's larger, but we can accurately argue that discrimination is unfair, bad for business, unsustainable, offensive to most people, and, "unethical". And it's this accuracy that makes the above text so potent. People have spent tens, hundreds of millions of Euro to argue that all patents are "good", because they promote innovation, investment, whatever. In six lines, I can disprove this by proving, without a doubt, how the system itself is broken.
After FOSDEM, I got some worried emails. "Has the FFII abandoned its position on software patents? Does the FFII now support software patents, so long as they are ethical?"
Let's look at the demands that we wrote for EthiPat:
I call on the EU to build a new patent system on these principles:
- Fair to the public. It must be made by elected lawmakers of democratic European Union.
- Fair to innovators. It must allow patents only where needed to spur innovation.
- Fair to all industries. It must adapt to the fast-growing diversity of technology and business.
- Fair to a free market. It must ensure that patent monopolies are narrowly focused.
- Fair to small businesses. It must provide affordable, fast, narrow and predictable rights.
- Fair to open research. It must protect the independent creation of original works.
Now, any patent expert, reading this, will point out that an "affordable, fast, narrow, and predictable right" is like alcohol-free beer. The whole point of patents is to make expensive, slow, wide, and unsafe rights… that's what makes them such fun for the patent industry.
In December last year, I wrote:
The day when I, as the owner of a tiny software company, seek to buy patents like I buy domain names and trademarks, will be the day that the patent system has finally made the jump from the age of steel to the age of brains.
So why has the FFII moved from saying, "we want no software patents", to "we want ethical patents", and is this a contradiction?
I'll answer the second part first. No contradiction. Ethical patents cannot harm the software developer. Read the EthiPat demands carefully, and you will see that any patents issued under such a system are at least safe, and possibly beneficial. No harm to open standards, no harm to free software. How?, you may ask. Well, we deliberately stayed away from making concrete proposals. Of course we have ideas. How about a patent that is filed online, instantly, remains unexamined until challenged, is valid for 3-4 years, has no claims, and allows independent re-invention? Would such a beast still be called a "patent"? Is beer without alcohol still beer?
What potential good could such "ethical patents" do for software? In December I also wrote:
The patent system is first about disclosure, then business certainty, then profit.
Today, as a software developer, I don't see that disclosure happening, and it's annoying. Why is there no grand store of the techniques, algorithms, ideas we need to share and learn? Source code is useless except as a short-term expression. The gibberish that passes for patent filings today is worse than useless. I want to see proper documentation of what we, as an industry of software developers, do. This is an original goal of all patent systems, and it's a vision of the ethical patent proposal.
Next, business certainty. As a progammer, I do need to own what I make. It's clear as day that strong ownership can be a very, very powerful way to build new markets that benefit us all. Look at the GPL, and the free software explosion that it has catalysed, based on the strength of copyright. When I write code, I need to know that I can benefit from this work. When I design a new user interface, I'm doing much the same work. Copyright does not cover everything I do, there are holes, and something new - a new form of patent - could fit.
There is an essential difference between attempting to retro-fit an ownership model that stems from the industrial age onto the world of services, and calling for new forms of ownership that really work in the 21st century.
Why is ownership so important? While free software developers believe in sharing, they also believe in very strong ownership. We share, but only with those who share with us. It is an ancient and essential instinct, our ancestors shared only with those who shared with them. It is the basis for our sense of justice, and the basis for ethics. EthiPat demands that patents be as safe, clear, and narrow, as copyright, and that the exchange between the patent holder and society be as fair as it is for copyright.
Lastly, profit. As a businessman, I take huge risks when I invest in new products. In software, the cost is not the ideas (which are laughably easy), but the turning of many ideas into saleable products, packaged, polished, and marketed. If my small firm can be the first to market with a new product, and know that we can't be copied for at least a couple of years, that would be very useful. EthiPat demands that "original works" be allowed, which implies that simple rip-offs are not allowed. This is what we expect from copyright. An "ethical patent" would cover enough of a software product to give the producers some breathing space in the market, while allowing original competitors. It's a delicate balance, but you can see immediately that this would help small firms (who innovate much faster), and would probably help the software industry as a whole.
I'm aware that these ideas are controversial, and I'll be accused of many things, from selling out the "no software patents" cause, to subverting the sacred idea of a "patent" (taking all the alcohol out of the beer).
Is the call for "ethical patents" weaker than "no software patents"? Has the FFII grown feeble and toothless over the last year? Are we compromising our ideals, or are we doing a triple-E (embrace, extend, extinguish) on the patent system? Have Pieter Hintjens and his cohorts "jumped the shark", or are we instead seeing the start of a wide-ranging offensive that will leave the patent extremists reeling in shock and horror as their carefully-constructed alternate reality collapses around them?