A false or misled "open source representative" has signed an industry resolution calling for the EU to allow software patenting, which has been sent to members of the European Parliament. Copies of the resolution are here and here. The European Legal Affairs Committee holds a plenary vote on software patenting this Wednesday, and may have been influenced by the false representation.

Software patents could be fatal for Open Source software in the U.S. and Europe. Since we do not collect royalties from the distribution of our own software, we have no funds to pay royalties to patent holders. Rather than sue us to collect money, expect patent holders to sue Open Source developers to restrain them from distributing their software or carrying out further development. Companies that produce proprietary software would bring that sort of suit to kill us off as a competitor.

While we can sometimes work around a patented algorithm that we know about, the Open Source developer is not able to defend himself from patent infringement claims, even invalid ones. In the U.S., the cost of a patent infringement defense often exceeds US$500,000. The Open Source developer, an individual working on his own time, won't have the funds to defend himself. He will be compelled to settle with his accuser, regardless of the merits of the case, in order to preserve what assets the plaintiff deigns to leave him. The copyrights of his own software won't be among those assets.

We are especially threatened by royalty-bearing software patents that are embedded in industry standards. In many cases, it is impossible to achieve compliance with a standard without infringing upon the patented algorithms that are specified by that standard. Standard compliance is critical for interoperability, and thus software patents in standards can make an un-communicating island of a Linux system. For example, the IEEE 1488 FireWire standard is encumbered by patents that apply to the software interfacing to it, and a patent royalty pool is operated in connection with that standard. Linux implementations of FireWire are potentially infringing, and prosecution could result in our software becoming legally unable to access FireWire devices.

We can not expect our industrial partners, such as IBM and HP, to help with patent defense or with the matter of software patenting in general. While those companies are often our friends, their interests also come into conflict with ours. Some of them use software patents to generate revenue or provide monopolies for their businesses. Thus, IBM has been calling for increases in software patentability, despite the fact that this is contrary to IBM's involvement in Open Source.

We also can't expect those companies to go against their own business partners in our defense. In 2002, Microsoft informed its business partners of its plans to bring patent infringement lawsuits against Open Source projects, an intention that it had made public as far back as 2001, in an appearance by Microsoft V.P. Craig Mundie at an Open Source conference. Microsoft is probably holding off enforcement until the question of European software patentability is settled, lest they dissuade Europeans from allowing software patenting. Last year, HP signed a "non-aggression pact" with Microsoft that may prevent them from assisting us in the future. It's unknown whether IBM would be interested in opposing Microsoft to protect an Open Source project or an individual Open Source developer.

One problem we have in holding off software patents is that we have little damage to show so far. Although at least one company has made its plans clear, there has been little prosecution of Open Source developers for patent infringement to date. My surmise is that anyone who has a patent to prosecute will hold off until the European software patent decision is made. They wouldn't want to provide evidence against the very laws they are seeking.

Thus, software patents present a tremendous threat to Open Source, perhaps a fatal one once Europe joins the U.S. in broader software patenting. Yet, the letter signed signed by Mr. Taylor proposes no real protection for Open Source, only that the government monitor for damage and publish reports.

In correcting the actions of Mr. Taylor, I should explain who I am and what right I have to represent Linux and Open Source developers.

I have been a speaker for the community of Open Source developers and programmers since 1993. I am co-founder and elected director of Software in the Public Interest, Inc., a tax-exempt non-profit organization that supports a number of prestigious Free Software projects. SPI's members are individuals, most of them authors of software that they have contributed under an Open Source license. I am the creator of the Open Source Definition, the manifesto of the Open Source movement in software. I contributed my first Free Software in 1987, and have been a major Linux developer since 1993. Free Software that I've written is in widespread commercial use and has flown on the Space Shuttle. You can see my resume here.

I generally act on consensus of a larger group of leaders including members of the Open Source Initiative, Software in the Public Interest, the Free Software Foundation, and various software projects. I have issued this alert individually because it regards a government decision less than two days away, but will consult those organizations regarding how to proceed.

In writing this alert I am relying on information provided by

* Hartmut Pilch, FFII & Eurolinux Alliance * Bernard Lang * Francois PELLEGRINI

You can reach me vie email to bruce @ perens.com or phone 510-526-1165 (US Pacific time zone).

Bruce Perens