Key policies for a healthy IT market

[ Article transferred from my old wiki ]

​It has been quite a while now since I have been involved in IT policy issues. For the past ten years I was alternatively active with European Parliament, non-profit organisations and open source companies on various projects aimed at fostering digital innovation.

Despite the growing dependence on software in our everyday life though, it appears that related legal concerns still remain obscure for most of people. In other words, it was hard to explain all of this ten years ago, and I somehow feel that it has not changed much.

A sufficient reason for me to remind here the keys to a healthy IT market – on which our information infrastructure and thus, our daily communications now rely.

» No software patent

Patent law was created as a counterpart for the costs invested in developing “technical solutions to technical problems”. Besides the fact that the software industry costs are of a completely different range, there is nothing technical in a software – not more than in a music score or a mathematical reasoning. A software is a set of instructions and data aimed at being executed by a machine. Software patents are dangerous as they create ownership rights on trivial processes. Programmers shall not have to worry about infringing a patent while developing pieces of codes. This leads to hindering software innovation, already sufficiently protected by copyright, antitrust and contract laws. Practices consisting in delivering software patents shall be stopped.

» No DRM in copyright law

Whereas copyright law shall definitely apply to software, and I include here open source licenses, the decision to include DRM among the subject matters was a complete mistake. A DRM is a digital restriction measure aimed at restricting access to related content. It is not because someone decides to add one to a content that the latter satisfies the legal criterias such as originality or creativity of the work. Worse, it prevents users from exercising legal exceptions to copyright, such as for interoperability or research purposes – in addition to eventually violating their privacy. A complete reform of the copyright system must be undertaken.

Learn more about patent and copyright :
read post on Intellectual Property vs Innovation

» Free and open standards

Data needs to circulate freely within the information infrastructure so that users are not locked in with one single editor. This is what we call interoperability, which allows us to read a same document using different software. In that extent we need free and open standards so that various actors can access and implement the latters on royalty-free basis to develop their products. This supposes neither patent nor any copyright restriction whatsoever, and is thus in contradiction with any “fair, reasonable and non discriminatory” model (FRAND) that would impose the payment of royalties. Free and open digital standards shall be enforced in all standardization bodies.

» Non discriminatory procurement

In addition of being strictly forbidden by contracting rules, favoring a brand in public procurement leads to excluding innovative companies from the market and maintaining propriatory, non standardized software in administrative bodies. This, at the expense of governments themselves, who collaterally abdicate their control over IT budget and security. In spite of common sense, public administrations continue playing a major role in sustaining monopolies through discriminatory calls for tenders. Transparency in public affairs is not only an option anymore. State’s infringement to contracting rules must be condemned.

» A ban on tied sales

Tied sales happen when a customer is forced to buy another product together with the one he actually needs. This raises the cost for the latter, and discourages him for searching for an alternative of the imposed product, excluding companies who could potentially offers competitive solutions. The legislation shall allow the customer to buy the products separately and give a chance to innovative competitors.

» Net neutrality

Internet shall remain an area where freedom of speech and communication prevail. If ever certain persons use it for inappropriate behaviours, such behaviours shall be condemned in accordance with the law on case by case basis. The web as for itself shall stand free from any censorship whatsoever. Unfortunatelly, some service providers tend to favor certain editors an block access to other’s content based on commercial interests. Such practices are not acceptable and must be forbidden by the law once and for all.

Does this post look familiar to you ? Possible, since I used it for Ultimate Circle’s policy section.

If there was one word to associate with a healthy software industry, would be OPENNESS.

Openness is essential when it comes to talk about software. Why ? Because software, such as mathematics, such as sciences, shall not be locked – or else, we are the ones who will end up locked in. Our society needs to build up around software. Not to be built by it.

I will come back shortly enough with explanations on open data and open source.

​​

Safeguarding the Kernel

[ Article transferred from my old wiki ]

When confronting to a hostile environment that despite your multiplied attempts, you can’t manage to change or at least, not quickly enough to save your skin, there are two options : either you keep shouting “we’re all gonna die, we’re all gonna die” and then when the witching hour arrives, look at your fellow agonising next to you and say “see, I told you” ; OR, you shut up for one minute, draw as deep as possible inside yourself and manage somehow – at this point, nobody can tell you how – to adapt to the situation and survive until it evolves.

During this critical period, there are globally three things you should safeguard as a person : your physical shape, intellectual health and moral integrity. The human being kernel. All you can count on thus being your own strength, focus on what you can control, and forget about the rest – theory tested by your humble servant although hmm, her life “as such” was not exactly threaten.

What works for individuals works for communities as well ; you just have to refine what you put into the kernel. In the case of the Linux community – to take an absolutely random example of course – the latter is made of the main components of the Linux operating system.

Having demonstrated in my previous post why the current Intellectual Property law was detrimental to innovation and thus, would only lead to some sort of global disaster unless seriously reformed – although I did not use those alarmist terms, leaving the conclusion to the smart reader – I initially felt quite satisfied about my brilliant reasoning.

Shortly enough I turned out to feel rather stupid thought, as I had been pointing out the problems but did not propose anything concrete to avoid a catastrophic scenario – being aware the IP system * is * evolving, but so slowly that our whole industry is currently clearly at stake. I started thinking, I should now look for solutions and in that extent, began to read all the literature that I found about how open source leaders, as first ones concerned, were dealing with the situation, my main concern being, as you can guess, the software patents plague.

Investigating at an OSS summit, I got in touch at that right moment with Open Invention Network, US based organization dedicated at preserving the Linux ecosystem.

Founded in 2005 right after the first patent attacks against major companies using Linux, OIN consists in a world wide non-aggression pact associated with a bunch of defensive tools.

While its members and licensees are bound by a minimalist cross-licensing agreement as regards to any Linux related software, ie. most of the open source market, OIN has developed its own patent pool to discourage any one who would feel like agressing the community – although it has never been used yet to sue anyone. OIN thus reverses the situation by offering some sort of free insurance policy based on the patent system itself.

Because the purpose is not to feed the latter but to actually safeguard the kernel, OIN then fosters the use of defensive publications instead of patents as well as prior art listing, cutting down innovation costs and the deliverance of trivial patents.

At first glance, I was quite sceptical so most probably, you will. But as long as software patents will be granted by patent offices, come and let me know if you have a better idea.

Until then, I found a place there so I am proud to announce you that in parallel of spreading awareness on the cold war that we are facing, I am now also participating in building the shelter. Someday, maybe I will negotiate the global demilitarisation.. Things happen. Let’s see.

Intellectual property vs Innovation

[ Article transferred from my old wiki ]

While the Anti-Counterfeiting Trade Agreement (ACTA) was finally rejected by the European Parliament on July 4th 2012 as first major victory of democracy since the rejection of software patents directive seven years ago, I still hear people eulogizing Intellectual Property (IP) as “fostering innovation”. Time to clarify the situation and stop with this Mickey Mouse fantasy.

First of all, what are we talking about.. ? Discussing some months ago with an IP Lawyer I discovered with much surprise that the issue of Intellectual Property in the digital environment was covering for him topics that had never come to my mind such as the qualification into legal terms of Facebook status. Frankly, does anybody care about this ? Apparently YES – he does. Inversely, the issues that I was, as for myself, referring to such as, hmmm, e.g. the opportunity of software patents, was for him absolutely small-beer ; insignificant.
The true thing is, the expression Intellectual Property covers so many subjects that it is quite difficult to talk about it in general terms, to affirm that it is whether good or bad, or to try to have global legislation over it. This is why wide scope agreements such as ACTA do not make sense. This is why, also, Richard Stallman, Founder of the Free Software Foundation, vehemently deplores the use of the expression, which is for him a “seductive mirage” at most.

1. Understanding the antinomy

Globally speaking, Intellectual Property Rights (IPR) refers to exclusive rights related to a wide range of creative works – initial meaning – but also various forms of information, data, knowledge – which is where, as you can guess, the problems start.

Its two main branches appeared in the 1440’s with the invention of the printing press by Johannes Gensfleisch “Gutenberg”, which raised the issue of the rights attached to industrial works on one hand, regarding who was entitled to benefit from the invention, ie. the machine’s revenues ; literary and artistic works on the other hand, as for the multiple “copies” of a single document that were then printed, ie. “copyright”.

Gathering both areas under the same denomination is nevertheless quite recent as it only came in late XIX’s century with the creation of the United International Bureaux for Intellectual Property (BIRDI), replaced in 1967 by the World Intellectual Property Organisation (WIPO). The Bureaux were set up to ensure the application of the two oldest IP conventions still in force : the 1883 Paris Convention on Industrial Property – inventions and trademarks – and the 1886 Bern Convention on Literary and Artistic Works.

Until here, no big deal. IPR appeared to encourage creativity through the legal protection of rights holders – although (!) the latters were not necessary neither the inventor nor the author but rather the business men they were surrounded by.

The actual problems came later on. When well established corporations started seeing Intellectual Property as a magical bubble to take control over the whole market and as side effect, our everyday life – yes, this is that simple. But let’s stick to the innovation’s challenge.

Innovation is about taking something as it is and introducing a new element that somehow, will make the difference in a positive way. It is about “improving” the existing – on the contrary to pure inventions which are supposed to entirely come from their creator’s imagination, e.g. the wheel.

As a consequence, it is essential for innovators to be entitled to use what already exists or else, there would be no way to innovation. This is the reason why a healthy competition matters so much ; the reason why exclusive rights – such as IPR – should be handled very, very cautiously.. Being simply at the opposite of the innovation’s concept !

Whereas nobody contests the necessity of legally protecting anyone’s works from abusive uses of anyone else who would make profit of it without counterpart to its author – which was the healthy basis on which were built both Copyright and Patent Law – a balance between right holders and their competitors is * vital * considering our future.

2. Pointing out the breaks in Europe

Unfortunately, European IP systems do not respect this balance but once again, let’s try to remain specific, and stay focussed on Copyright and Patent policies relevant in Europe for Information and Communication Technologies (ICT). The reasoning can then be easily extended for all fields of industry, not least because their use is now hardly unavoidable whatever the sector you are working in.

» An inappropriate Patent System

I already explained in a previous post the the threats on digital innovation by the European Patent Office (EPO) who intentionally confuses hardware, potentially subject to patent protection, and software, which has no reason to be covered by any kind of patent for the simple reason that it has no technical aspect in itself.

As a reminder, patents are indeed supposed to protect inventions, themselves defined as “technical solutions to technical problems”, and not literary work, nor algorithms, which is what software is actually about ; in fact, just as musical partition, software needs an “instrument” to be played in, and might then only be subject to Copyright protection.

The dangers related to the EPO can then be briefly summarized as follow.

» The European Patent Office is a non E.U. institution auto-financed depending on the number of patents delivered ; as a consequence, the EPO has a particular advantage in delivering a maximum number of patents and thus, lowering down the quality of patents. This statement is global – not only related to ICT : everything with the EPO has the potential of becoming subject to exclusive rights, e.g. works methods, as extraordinary as it can sound. This gives you an idea of the threats currently weighing on the public domain – far beyond the innovation’s issue.

» Patents involve a bunch of costs totally disproportionate considering the software industry revenues – at least, SMEs, ie. 80% of the digital market. Among those we find deposit, renewal, licensing and last but not least, law suits costs. Not very encouraging for innovators which most of the time, do not belong to well established companies – mostly living through the re-edition of old products enjoying monopolistic position. Another reason why the latters do not innovate much is the old style work methods used to improve the products or develop new ones. SMEs are quicker and more often choose original works methods, like users community participation, that are now proving their efficiency.

» Partly due to those extraordinary costs that most of ICT companies cannot afford, non practising entities found the idea entertaining and rewarding to buy patents portfolios on every little code sequence so that any developer takes the risk to infringe one of their patents while developing the most common software. Trivial patents are not the apanage of patent trolls though ; well established companies with large finances indeed don’t hesitate either to register similar patents to kill competition – which somehow, do make sense.

For more information about the patent system visit 06072005.eu.

» Copyright Protection applied to wrong subject-matters

Whereas Copyright is, with no possible doubt, an appropriate choice to protect software – although other solutions exist and are time after time gaining success – it does not mean that every piece of code should fall under copyright protection. Just as for the present blog post which I, Alex, am the author of ; it does not mean that I have exclusive rights on criticizing Intellectual Property, nor on the words, or expressions used here. My author’s rights are neither related to the ideas conveyed, nor to the English language subtleties.. But on the article taken as a whole, as a result of my personal analysis of the situation and, unconditional element, efforts to present it as a coherent text, that nobody before me has ever produced.

Okay. Well. Despite this evidence, International and European legislation give today full Copyright protection to any piece of code included in a software, from the moment the software is coupled with digital rights management (DRM) system. It means that if anybody cracks the system to access the code for any reason – because the software does not work on his computer for example – the person is infringing the law. Just as if your car had a breakdown, and you were not allowed to fix the engine.

But let’s go back to innovation. Once again, there is no way to innovation if we cannot observe what has been done by others. That’s it. You can keep seeing hackers as bad guys.. But if we want our society to evolve towards a better future, we need to be entitled to open the hood, look at how the others have been doing, and find our own inspiration in there to propose new solutions, new models. That’s what we call innovation. That’s what free competition is about.

So of course, software shall be protected : if someone copy-past it, makes a few cosmetic changes and then sells it under a new brand, that’s counterfeiting and shall not be accepted. Also, you cannot prevent companies from adding digital systems to prevent access to their code. Fair enough. But the law should not intervene here to forbid anyone to bypass such measures, for the simple reasons that sometimes, DRM are protecting pieces of codes that have no reason to be subject to copyright ; and that anytime, the user should have the possibility to access the system so that the product fits with his needs.

Where would innovation lie, if not in observation and trying to fix what does not work ? How could we move forward, if we weren’t allowed to examine problems, and search for solutions.. ? A copyright system based on the legal protection of DRM can only be interpreted as detrimental to innovation. CQFD -_-

IPR iceberg right ahead

[ Article transferred from my old wiki ]

This could have been discussed in the previous thread but then, it might have become a little harsh to read for a simple blog post. Let’s move now from the very particular case of patents in the ICT industry to the wide scale of Intellectual Property Rights (IPR) taken globally – which includes Patent Law but also Copyright, Trademarks and other special rights on intellectual works.

The sectors concerned here are multiple, beyond our imagination as simple citizen : agriculture, health, environment, space, energy, transportation, security.. Well actually, absolutely all areas of industry.

As you know now how bad IPR can be considering the software patents case, try to figure out their possible implications at global scale in all those sectors and ask yourself “what if software patents were just the tip of the iceberg ; what if IPR were causing serious problems in other fields as well”.. For sure, this deserves a little attention.

Whereas this simple observation should lead to a bunch of studies on IPR advantages and inconvenients depending on every particular field and potentially, related reforms to adapt the system, an International agreement is currently being negotiated secretly to enforce Intellectual Property worldwide with civil but also criminal measures, this without a single safeguard : the Anti-Counterfeiting Trade Agreement(ACTA).

Understand this : the ACTA does not make any distinction neither among sectors nor among IPR categories. It is based on the assumption that all rights related to Intellectual Property are fine and shall be enforced the same way whatever the creation, whatever the sector and whatever the country we are talking about – “to permit effective action against any act of infringement of intellectual property rights” (article 6.1). This, with no binding exception.

Concretely, here is an overview of the dramatic consequences that the agreement will lead to unless we stop it.

ACTA vs Individuals :

— Civil liberties threaten, consumer’s protection denied.

By sanctioning and criminalizing final consumers of online services (1), forcing internet providers to control data and transmit it to right holders without former decision of a judge (2), ACTA is violating the freedom of speech and information, the right to protection of privacy and personal data as well as the right to fair trial and due process (3).

To use a more modern concept, ACTA is a clear attempt to Net Neutrality, which supposes “no restrictions by Internet service providers or governments on consumers’ access to networks that participate in the Internet regarding notably content, sites, platforms, types of equipment that may be attached, and modes of communication” (Wikipedia).

— Access to health and medicine jeopardized.

By allowing abusive custom controls, such as destruction of material without proven counterfeiting, and protecting “evergreening” (1) practices from pharmaceutical companies, only serving a small part of the population, ACTA impedes the circulation of generic medicine, and thus prevents developing countries from having an affordable access to health and medicine.

(1) “Evergreening” consists in patenting the same medecine after expiration of the protection by slightly changing the name and composition.

ACTA vs Economy :

By globally supporting existing patent systems and excluding from the market companies on simple injunction / suspicion from a competitor, ACTA is a disaster for European ICT start-ups who cannot afford patent costs and notably, litigation costs. Such situation benefits to established businesses, mostly American and Japanese, and “patents trolls” – cf. 06072005.eu.

ACTA will above all give a competitive advantage to China, currently building a huge patent portfolio and apparently not planning to sign the agreement and then be bound by it, but also to the US, who do intend to join ACTA but exclude patents from its scope. Facing two giants, why the hell would Europe accept new bonds when the others would not ? It just does not make sense.

ACTA vs Environment :

This is just the consequence of the above. Because related to the use of hundred of softwares, the diffusion of green technologies will face the same obstacles as ICT start-ups.

According to the FFII, “the majority of systems (for example, wind turbines, water turbines, and solar collectors) rely on cross-border up-time-management software and systems. ACTA explicitly and adversely impacts the ability to transmit grid and local data, operate feedback mechanisms to energy suppliers, and operate security protocols across international rail, air, and shipping infrastructure applications.”

Beyond its dangerous content, ACTA is above all an anti democratic tool negotiated out of legitimate institutions – they would have opposed it – and authorising an ad hoc committee to amend the text to set new rules with not even consulting the parties.

Update 26.01.2012 : whereas ACTA has been signed by most of EU member states as well as Australia, Canada, Japan, South Korea, Morocco, New Zealand, Singapore and the United States, it is not yet in effect in Europe. ACTA should be ratified by European Parliament next Summer.

STOP iT NOW : follow instructions given by citizen lobbies and help kicking it out.