Subject: Re: Examples needed against Soft Patents
From: Ben Tilly <btilly@gmail.com>
Date: Wed, 29 Dec 2004 12:56:04 -0800

On Tue, 28 Dec 2004 23:03:16 -0500 (EST), Russell McOrmond
<russell@flora.ca> wrote:
> 
> 
> On Tue, 28 Dec 2004 16:06:37 +0900, Stephen J. Turnbull
> <stephen@xemacs.org> wrote:
> 
> > As Russ phrased the issue, I took it that he believes that even a
> > fairly small group has the incentive to lobby against software
> > patents, and that the network externalities of such a lobby should
> > cause it to grow (although he didn't express it that way).  He was
> > wondering why that doesn't happen.
> 
> On Tue, 28 Dec 2004, Ben Tilly wrote:
> 
> > I strongly doubt that Russ has thought his beliefs out in this way.
> 
>   Currect, but it was interesting to have it sent back to me in a very
> different form.
> 
> > I suspect that he believes that, "This is obviously important, why
> > aren't people addressing it when their payoff is so obvious and
> > the cost to each of them contributing would be so small?"
> 
> 
>   There is also the question as to why specific campaigns seem to work in
> some places, but not in others.
> 
>   Lets take two jurisdictions as examples.  I am trying to organize in
> Canada.  While software patents are of concern to me, it is only if I
> somehow leverage the Canada-DMCA-Opponents community (now
> digital-copyright.ca ) that any work on software patents in Canada will go
> anywhere at all.  Software patent policy is changing in Canada, with CIPO
> doing very similar things to what the EPO has done, granting pure software
> patents even though the law and jurisprudence doesn't support it.
>
>   On the other hand there is the http://swpat.ffii.org/ group that is
> doing great work in Europe.  Even though software patents exist elsewhere
> I don't see any group as well organized as FFII.  What is it about FFII
> that has been (from my vantage point) so successful, but similar work has
> not happened in North America or elsewhere?

I am unfamiliar with the relevant history so I can only guess.

One possibility is that it is simply hard to have two different groups
occupying a similar mindshare.  Through accident digital-copyright.ca
occupied the "worried about intellectual property abuse" meme in
Canada, and swpat.ffii.org did it in Europe.

If it isn't just an accident of history, then I'd throw the USA into the
mix and guess something like this:

1. In the USA no movement at all took hold because the abuse
  was in place before people realized how bad it was, and once it
  was the effort needed to achieve any effect in government is so
  large that no group was able to organize to do it.

2. Canadian companies expect to sell into the USA.  Therefore
  while they might dislike a Canadian software patent law, they
  don't see it as that bad of an incremental cost since they have
  to deal with the US mess anyways.  Since the DMCA got more
  publicity, they organized against that being replicated.

3. European companies don't necessarily expect to sell to the
  USA.  Thus losing products to a local patent law would be a far
  bigger relative hit for them, so they're more motivated by it.

  Furthermore the big ones see a very direct threat - if a local
  patent law is passed then US companies with extensive
  patent portfolios will have a huge advantage in building up
  European patent portfolios, they'll just refile all of their US
  patents.  That would leave local companies at a competitive
  disadvantage to US companies.  Some very large European
  companies are afraid of this, and therefore are willing to
  lobby hard to prevent it.

> BTW: Thanks for the ongoing discussion.  It has been quite helpful --
> especially when there are differing views.  Sorry for the emotions that
> burst out from time to time, but given how personal FLOSS advocacy can be
> for some of us I hope that can be excused.

I haven't been hit by too much froth, I'll live. :-)

Cheers,
Ben