Tag Archives: Open source

The software patent affair

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Law firm Chapman Tripp has published an article criticising the Government’s decision to exclude software from patentability. While the article makes some valid points, it does not deal with some points fairly.

The article claims:

The [software patent] exclusion was the product of intense and successful lobbying by members of the “free and open source” software movement… In its April 2010 report to Parliament on the Patents Bill, the Commerce Select Committee acknowledged that the free software movement had convinced it that computer programs should be excluded from patentability.

I’m sure this assertion of mighty lobbying power (the ability to sway an all-party, unanimous recommendation no less) would be flattering to any professional lobbyist, let alone FOSS supporters – if only it were true (it is not evidenced in the Commerce Committee report). A range of entities made submissions against software patents, including the statutorily independent University of Otago, InternetNZ, a number of small businesses (and my independent self, I modestly add). There were also submissions the other way, though interestingly the most submissions in favour of retaining software patents were from patent attorney law firms. It is also notable that other organisations including NZICT, which is a strong supporter of software patents and engaged in heavy after-the-event lobbying, did not make any submissions on the issue.

The article adds the comment:

The Committee said that “software patents can stifle innovation and competition, and can be granted for trivial or existing techniques”. The Committee provided no analysis or data to support that proposition.

The fact that a Committee “provided no analysis or data” to support its recommendations is hardly noteworthy – that is not it’s job. Submitters provide analysis and data to the Committee, not the other way around. The material in support of the proposition is in the submissions.

The article sets up an unfair straw-man argument:

Free software proponents reckon that software should be free and, as a result, they generally oppose intellectual property rights. They say that IP rights lock away creativity and technology behind pay-walls which smother innovation. Most authors, inventors and entrepreneurs take the opposite view.

I don’t claim to know what “free software proponents’” views on all manner of IP rights are, but when it comes to software patents in New Zealand, the evidence strongly suggests that the “authors, inventors and entrepreneurs” of software (FOSS or not) are opposed to software patents (see my posts here and here). This includes major companies, including NZ’s biggest software exporter Orion Health (see Orion Health backs moves to block patents).

While the New Zealand Computer Society poll showing 81% member support for the exclusion is not scientific, it is at least indicative. In any case, opponents of the new law (mainly law firms) have consistently asserted a high level of opposition to the exclusion without any evidence to support that view.

The article leads to the warning:

If New Zealand enacted an outright ban on computer-implemented inventions we would be breaking international law. … Article 27(1) of TRIPs says that WTO members must make patents available for inventions “without discrimination as to… the field of technology…”.

The authors rightly point out that breaching TRIPs could result in legal action against the Government by another country. However, that conclusion is premised on the basis that software is an “invention”. A number of processes and outcomes are not recognised as inventions for the purpose of patent law in different countries, including mathematical algorithms and business methods. The question of whether software is (or should be) an invention was commented on by a Comptroller-General of the UK Patent Office:

Some have argued that the TRIPS agreement requires us to grant patents for software because it says “patents shall be available for any inventions … in all fields of technology, provided they are…..capable of industrial application”. However, it depends on how you interpret these words.

Is a piece of pure software an invention? European law says it isn’t.

The New Zealand Bill does not say that a computer program is an invention that is not patentable. It says, quite differently, that a computer program is “not a patentable invention”, along with human beings, surgical methods, etc.

Article 27 has reportedly rarely been tested (twice in 17 years), and never in relation to software. The risk of possibly receiving a complaint under a provision (untested) of a multilateral agreement is not new. The New Zealand Law Society notes this in its submission on the Patents Bill (which does not address software patents):

The proposal to exclude plant varieties under [the new Act] is because New Zealand has been in technical breach of the 1978 Union for the Protection of New Varieties of Plants (UPOV) treaty since it acceded to it in November 1981.

What’s 30 years of technical breach between friends? Therefore, in fairness I would add a “third way” of dealing with the software patent exclusion: leave it as it is, and see how it goes (which is, after all, what the local industry appears to want). As I wrote last year, “Pressure to conform with international norms (if one emerges) and trading partner requirements may force a change down the track, but the New Zealand decision was born of widely supported policy …”

If the ban on software patents as it currently stands does not make it into law (which is a possibility, despite clear statements from the Minister of Commerce that it will), it won’t be the end of the world. In fact, it will be the status quo. There are pro’s and con’s to software patents, and the authors are quite right that New Zealand will be going out on a limb by excluding them. The law can be changed again if need be. In the meantime, I refer again (unashamed self-cite) to my article covering the other, and much more popular, ways of protecting and commercialising software.

Tech law update 21 July 2010

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Legal risks for IT pros

InfoWorld has an article on lurking legal gotchas (and how to avoid them) for IT pros. Its list includes:

  • Confidentiality and privacy violations
  • Pornography use
  • Copyright and source code violations
  • “Financial shenanigans” – essentially fraud or other criminal activity.

The article is based on US law, but the above list is applicable in New Zealand. However an important distinction not made entirely clear is that between intentional (i.e. malicious) activity and accidental contravention. Also, in most cases employees who are honestly carrying out their job are entitled to be indemnified by their employer for any liability arising against them personally (subject to employment contracts and other factors). Independent contractors are generally liable for their own actions, however, and insurance is an important risk management practice for contractors.

Open source wrangling

Computerworld reports on a controversy over whether a US company has breached the GPL terms of the R statistical software (developed out of Auckland University and the original version of which I used in stage-1 stats). The company, Revolution Analytics, denies breaching the GPL. It uses the increasingly popular (but sometimes controversial) “open core” model where (for example) the core program remains licensed on open terms, but other components and add-ons are under proprietary licenses. The situation highlights the sometimes murky issue of copyright ownership, assignment and licensing in large open source projects. Another example, involving OpenOffice, is reported here.

Copyright vs Contract law

A UK government advisory board, the Strategic Advisory Board for Intellectual Property, has completed a lengthy report (182 pages, 6MB pdf) on “the relationship between copyright and contract law”. The highly academic report appears to be a last hurrah for the quango, which is to be axed. The report is based on extensive research into “creator contracts” – i.e. supply side contracts such as those entered into by authors, musicians, artists, etc – and “user contracts” – i.e. demand side contract typically involving licensing of IP to end users. A summary of the fairly impenetrable report is here.

Open source in government tenders

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Computerworld reports:

A requirement that a component of a government IT tender be open-source has sparked debate on whether such a specification is appropriate.

The relevant part of the RFP (for the State Services Commission) puts the requirement as follows:

We are looking for an Open Source solution. By Open Source we mean:

  • Produce standards-compliant output;
  • Be documented and maintainable into the future by suitable developers;
  • Be vendor-independent, able to be migrated if needed;
  • Contain full source code. The right to review and modify this as needed shall be available to the SSC and its appointed contractors.

The controversy is whether this is a mandate of open source licensing (which it isn’t). The government should not mandate open source licensing or proprietary licensing on commercial-line tenders. More precisely, it should not rule solutions in or out based on whether they are offered (to others) under an open source licence. The best options should be on the table.

The four stated requirements are quite sensible. As the SSC spokesman said, there is nothing particularly unusual about them in government procurement. These requirements (or variations on them) are similarly common in private-sector procurement and development contracts. In the public sector in particular though, vendor independence and standards-compliance help avoid farcical situations like the renegotiation of the Ministry of Health’s bulk licensing deal.

Open standards and interoperability in public sector procurement is gaining traction around the world. Recently, the European Union called for “the introduction of open standards and interoperability in government procurement of IT”. And in the recent UK election, all three of the main parties included open source procurement in their manifestos.

So why the controversy in this case? Most likely it’s the perhaps inapt use of the term “open source” in the RFP (even though the intended meaning is clarified immediately afterwards). The term “open source” is a hot-button word that means many things to many people, but today it generally means having code licensed under a recognised open source licence, many of which are copyleft. Many vendors simply could not (or would never want to) licence their code under such a licence, and it would be uncommercial and somewhat capricious for a Government tender to rule out some (or even the majority of) candidates based on such criteria.

However, it is clear that the SSC did not use the term in that context, and does not intend to impose such a requirement. An appropriate source-available licence is as capable of meeting the requirements as an open source licence (see my post on source available vs open source). The requirement for disclosure of code to contractors and future modification can be simply dealt with on standard commercial IP licensing terms.

A level playing field for open and proprietary solutions is the essential starting point, with evaluation – which in most cases should include open standards and interoperability – proceeding from there.

UK election 2010 – the technology vote

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Technology policy and law is featuring prominently in the UK election campaign currently underway, with issues such as cloud computing, open source procurement and data protection finding their way into manifestos:

“The Liberal Democrats’ election manifesto published today (14 April) called for improved government IT procurement, including the use of cloud computing and open-source software.”

“The Conservative party has reiterated its plans to freeze major new IT spending and make changes in government procurement in its election manifesto… The Tories also pledged to create a “level playing field” for open source IT in government procurement, and to break up large IT projects into smaller parts to enable SMEs access to contracts.”

Labour repeatedly highlighted the importance of IT in its election  manifesto, which was launched today, but made few new IT-related promises.
The Labour Party stands on strengthening the digital economy, using open source in government IT …

“Despite the name, the Pirate Party isn’t just about file sharing. Yes, it wants to ensure a right to file share, as well as format shift – such as moving songs from CDs to iPods, which is currently technically illegal. It also wants to cut copyright from 70 years to 10 and put labels on products to warn of the “defect” of DRM… On top of that, the party would ban spying on communications, end “compulsory ID cards” and toughen up data protection laws.”

More links on tech policies from: the SNP and Plaid Cymru, and the Greens.

Clearly, IT is figuring much more prominently in the upcoming UK election than in New Zealand’s last election in 2008. One reason is that the UK has suffered a number of major IT project blow-outs in recent years (such as the disastrous £12.7 billion NHS National Programme for IT) that have basically become minor election issues.

There are signs that technology is featuring more prominently in New Zealand’s political scene, though hopefully this will not be due to scandals over failed government IT projects.

However, the cynical last word must go to the Inquirer:

In short if you want to vote for someone on the basis of their enlightened IT policy you would be better off spoiling your ballot.

Tech law news 9 April 2010

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Proposal to ban software patents irks patent attorneys…

Two patent-specialist law firms have criticised the Commerce Committee’s recommendation to ban software patents in New Zealand (read here and here). Both express surprise that the Committee appears to have accepted submissions by open source proponents, as if that alone is reason not adopt the report. The articles do not accurately represent this arguments, in my view, and the New Zealand Open Source Society has now provided a response.

While another says “stop wasting money on patents”

US intellectual property lawyer Erik Heels writes:

In most cases, filing a patent application is a waste of time and energy. Especially for startups. Your money and time would be better spent hiring programmers, marketers, and a sales force.

This is good advice for New Zealand businesses, especially tech start-ups. As Erik says, it can make sense in some cases, but at least consider the definite immediate opportunity costs versus the possible future benefits (and hidden costs to attain those benefits) of seeking a patent.

Historical legislation online

The Parliamentary Counsel Office has begun digitising historical legislation dating back to 1841, to be provided free online. Historical legislation doesn’t only have historical interest value, it can also have practical uses – such as providing a comparison to assist interpretation of current laws. While the first step involves simply scanning the old legislation (including the “shattering statutes“), longer term the plan is to OCR the documents into the excellent New Zealand Legislation website.

Software patents to be banned in New Zealand

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The Select Committee examining the proposed Patents Bill has recommended that software patents be excluded from patentabilty (full report, 1.6MB PDF):

We recommend amending clause 15 to include computer programs among inventions that may not be patented. We received many submissions concerning the patentability of computer programs. Under the Patents Act 1953 computer programs can be patented in New Zealand provided they produce a commercially useful effect. Open source, or free, software has grown in popularity since the 1980s. Protecting software by patenting it is inconsistent with the open source model, and its proponents oppose it. A number of submitters argued that there is no “inventive step” in software development, as “new” software invariably builds on existing software. They felt that computer software should be excluded from patent protection as software patents can stifle innovation and competition, and can be granted for trivial or existing techniques. In general we accept this position.

It is great to see the committee has accepted the core arguments put forward by a range of submitters (including myself) and rejected the opposing views put forward against those arguments. The mention of open source is significant and quite likely the first time it has directly influenced policy.

The actual proposed amendment implementing the ban is straightforward:

15(3A) A computer program is not a patentable invention.

The committee has not attempted to define “computer program”, which is sensible and consistent with the use of that term in the Copyright Act 1994. The amendment is not wide enough that it will necessarily prevent someone attempting to dress up what would otherwise be a software patent application as a business method patent. But it will be highly effective in most cases, and should prevent the worst examples of software patents granted (or threatened) overseas from being replicated in New Zealand (e.g. 1-click).

The House will need to vote on the proposed changes to the Bill.

The committee also discussed embedded software:

While the bill would provide adequate incentives for innovation, however, we are aware of New Zealand companies who have invested in a significant number of software-related inventions, involving embedded software.* We sought advice on the approach
taken in other jurisdictions such as the United Kingdom and the United States, and whether legislation that would enable “embedded software” to be patentable might be practicable. After careful consideration we concluded that developing a clear and definitive distinction between embedded and other types of software is not a simple matter; and that, for the sake of clarity, a simple approach would be best. We received advice that our recommendation to include computer programs among the inventions that may not be patented would be unlikely to prevent the granting of patents for inventions involving embedded software.

Software in any form would likely be caught by the proposed section 15(3A), but the final sentence of the above quote reflects the fact that it will not be possible, or practical, in many cases to separate the embedded software from an invention. It is important to note that the proposed Bill does not expressly endorse embedded software patents, but as with business method patents each application will need to be assessed on its merits.