Florian's comment on victory

Florian Mueller left a comment on my previous post about the software patents campaign. I promised to reply soon and I will, but meanwhile I think it’s worth reading, if you haven’t already:

I was quite actively involved in the fight against that proposed EU directive, and I was in Strasbourg on the day of that memorable vote. It was a victory for us, but it was merely a defensive victory. We did not bring about legislation in favor of our position — we just prevented what I believe would have exacerbated the situation quickly at the time.

Now, almost six years later, I no longer believe we can claim (as you do at the end of your post) that “we won”. The European Patent Office grants more software patents than ever; national high courts of major EU member states uphold software patents; and software patent holders enforce their rights aggressively in Europe, such as Apple (please take a look at the patents listed on page 33 of this document).

So while it was appropriate in 2005 to call this a victory, I don’t think it’s still the right thing to say in light of where things stand today. Frankly, if the directive in the form originally proposed by the European Commission had been promulgated, there would just be a greater degree of clarity and Europe-wide harmonization about how it’s applied, but software patents are a part of today’s European reality regardless of what we achieved back then.

The one respect in which that victory still matters is that it strengthened EU democracy. It was the first time in EU history (and I believe it’s still the only one) that the European Parliament rejected a legislative proposal by the Council without going into conciliation. This strengthens Parliament’s role in negotiations and has probably affected many legislative processes ever since.

But on the software patent front, it doesn’t matter too much anymore. Think of soccer — a sport in which underdogs sometimes achieve spectacular results. If an underdog manages to hold a much stronger opponent to a goalless draw, that’s remarkable and, at the time it happens, it’s a reason to celebrate. But in order to win one has to be capable of scoring goals (not only able to prevent them). Our movement never ever scored a goal in an offensive sense. We never went on the attack and said ‘this is the kind of legislation we want to do away with software patents’ and got such a proposal passed into law.

A team that never scores a goal may achieve a goal in soccer because the match will be over after 90 or 120 minutes plus stoppage time. In politics, there is no 90 or 120 minute limit. Things go on and on and on. And if you never score a goal for so many years — almost six years now in this context –, your opponent will at some point score and then you’ve lost.

It’s a nice romantic idea that millions of people can win over millions of euros. But in a matter of economic policy making, it’s nothing more than a dream, and in this case it’s a dream that didn’t truly materialize.

Ultimately, if politicians have to decide on how to regulate a commercial matter, they will listen to business. I don’t know of any large corporation that opposes software patents (even Google is in favor of its own software patents). I know some small and medium-sized companies who are against them, but they never took serious action.

Politicians won’t listen to organizations like the FSF(E) and FFII (or whatever little is left of the FFII by now…) to the extent that they would abolish an intellectual property rights regime that’s strong, resilient, and deeply entrenched. That would only happen with strong business support. The absence of such support indicates that most companies — unlike idealists — simply look at software patents as a fact of life, as a cost of doing business. Against that mentality, you and the organizations you mention stand no chance — absolutely no realistic chance ever — to prevail, and that’s why I for my part dropped out of this almost 4 1/2 years ago and now try to focus on how to deal with the fact of life that we all have to live with.

Florian blogs regularly on FOSS Patents about software patents in Europe.