inamerrata

Ugh. Why do I find my first real fisking is of a press release by Linux Australia and OSIA (Open Source Industry Australia) — organisations whose goals I actually support? Oh well. Honesty over solidarity, I guess.

(As a side note: it seems this has hit ZDNet, the Fairfax papers (the Sydney Morning Herald and the Age), Slashdot, and, weirdly, left-wing French site Collective Bellaciao. Remind me again what we’re supposed to think of news media that republish press releases almost verbatim, without analysis or even bothering to reference contradictory facts or alternate takes on the situation?)

OSIA Limited & Linux Australia: AUS-FTA a Danger to the Australian Software Industry

(Friday 06 August 2004 10:09:50 pm)

The entire Australian software development industry is at risk as a result of the Intellectual Property legal framework required on adoption of the AUS-FTA, Australia’s Linux community and Open Source Industry bodies said today in a joint statement.

Yes, that’s right all software developers in Australia are at risk! Even the guys working for IBM at Ozlabs — IBM would’ve signed off on it too, of course, but the pen ran out of ink. Oh, and please ignore any dissenting rabble you might’ve heard: open source groups know what’s best for you, even if you think open source is stupid and don’t use it.

It will increasingly hamper Australia’s ability to efficiently compete in global markets. Much like the introduction of a flawed patenting regime for pharmaceuticals, adoption of a flawed patent regime for software is not in Australia’s interests.

Here’s where we build the strawman, and start talking about changing the patent regime. Here’s the relevant bit from the IT Minister’s media release from Wednesday (ie, a couple of days before the OSIA/LA press release came out):

“The AUSFTA will not have an effect on Australia’s current approach and treatment of applications to patent computer software nor will it affect Australian open source software producers.

“Computer software is already patentable in Australia if it meets the patentability criteria of being ‘new’, ‘inventive’, a ‘manner of manufacture’ and ‘useful’. This will not change under the AUSFTA.

But hey, those open source guys! They know what laws the government are going to propose way better than the minister for that area; and it’s not like the minister has any say in the matter!

“Firstly and most importantly, this is not an open source issue, nor will it merely affect Australian-based open source developers,” said open source spokesperson and lawyer Brendan Scott. “The FTA may introduce obstacles and legal traps which will have serious and harmful effects on almost all Australian software developers. It’s a whole-of-industry issue for Australia.”

And you’ll see how the strawman continues: “the FTA may introduce obstacles”. There’s a big difference between may and will. With one you can make up all sorts of nonsense, with the other, you’re at least putting your reputation where your mouth is. You can compare and contrast the LA/OSIA press release’s use of one with the minister’s use of the other, if you’re not clear on the concept.

Here’s why:

• The wording in the FTA suggests that there will be a harmonisation of Australia’s software patents law with the US laws. The US patent system for software has been broadly condemned as flawed by many industry observers, even by the former Patent and Trademark Office director himself.

And thus the strawman continues: the FTA “suggests”, there’ll be a “harmonisation”, and with the appropriate hand-waving complete, we can start criticising a much easier target: the US patent office.

For reference, the patent harmonisation clause says this:

14. Each Party shall endeavour to reduce differences in law and practice between their respective systems, including […] In addition, each Party shall endeavour to participate in international patent harmonisation efforts, including the WIPO fora addressing reform and development of the international patent system.

15. Each Party shall endeavour to establish a cooperative framework between their respective patent offices as a basis for progress towards the mutual exploitation of search and examination work.

Another etymological puzzle for you, gentle reader: the difference between “shall” and “shall endeavour”.

Of course, this precise issue was addressed in the Joint Standing Committee on Treaties (JSCT) report too:

16.83 However, the Committee is satisfied that the use of the word ‘harmonisation’ in the DFAT fact sheet has led to some confusion in the general community and that the claims made by the various individuals and organisations will not eventuate.

But hey, no point worrying about what anyone else says. We’re way smarter than all those guys! It’s like, they can’t even read and we’re like all, but the utilisation of the post-perfect variant of the subjunctive case in the subordinate clause to the participal noun inverts the natural interpretation of the adjectival phrase thus rendering the secondary exception totally moot. So why would we even want to bother caring what anyone else might say?

• Any non-trivial piece of software embodies possibly thousands of code processes, algorithms or software modules, any one of which could fall foul of one or many US software patents.

This, of course, is true already: other countries’ patents are a concern for everyone who’s exporting software to other countries. It doesn’t matter if you don’t export of course, and isn’t it interesting how we open source folks don’t much care about the extra access Australian firms now have to US government procurement? It’s a big market there, full of problems that can be solved with open source. Does this mean open source developers in Australia aren’t internationally competitive enough to make use of this, or that they’re all working for multinationals who can already do it via their US wing, or does it mean that open source business models are so ineffective that any open source software developed by an Australian would just be rebadged by an American so there’s no point trying?

And on it goes:

• Australian developers face hefty fines if they re-create software processes unaware of the possibility that they may been patented. […]
• Most Australian software developers do not have the resources to check [for patents]
• US patent law allows for the imposition of punitive damages. […]
• Obtaining software patents is expensive. […]
• Most Australian software developers lack the resources to go toe-to-toe with large firms on any IP legal issues. This includes situations where the Australian developer is the one which owns a patent.
• Most software patents are owned by huge ICT firms, […]
• Many or most software patents in the US have been granted on processes or algorithms which are exceptionally vague […]

Problem is, none of this is going to change; so the problems either already exist, or aren’t going to appear. In neither case is the software development industry “at risk”.

“We’ve covered just some of the dangers to the local industry embodied by the introduction of US-style system,” continued Scott.

That would be the introduction that’s not going to happen, of course.

“There are a similar number of serious issues which will arise with the introduction of DMCA-style legislation, also mandated by the FTA. It suffices to say that anything which stops academic research into security and which also stops any endeavour towards software interoperability engineering is a serious problem for R & D in this country.”

Well, no, that doesn’t suffice at all: the DMCA doesn’t stop “any endeavour towards software interoperability engineering”, nor “academic research into security”. As you can tell by the interoperability engineering and security research that goes on in America which already has the actual DMCA, of course. And then, we’re not actually getting the DMCA verbatim, and we’ve already had DMCA-style legislation since 2001.

“The FTA puts anti-competitive tools into the hands of large players, without any real accountability,” said Pia Smith, president of Linux Australia.

Plenty of artificial accountability, just none of the real stuff. Weasel words like “real” are a wonderful way of avoiding being accountable for what you say: hey, maybe there’s no such things as “real accountability”!

“It grants a monopoly over technology, innovation, competition, and even the research sector. The DMCA in the US has been used to threaten competitors, stifle innovation, halt research, gaol developers, and systematically remove the rights of consumers. Allowing the same to happen here, especially under an FTA where we lose the ability to fix the issues locally is naive, and dangerous to Australia.”

Yes, step right up folks, we’ve got a monopoly over technology, innovation, and research here for the taking! It even — you’re not going to believe this — but for a limited time only, it even includes a monopoly over competition itself! It’s fun to string words together, especially when they don’t have to mean anything in particular. It’s not particularly helpful or instructive though, however good much fun it might be. And we’ve got a new strawman, as we start attacking another law that we’re not actually going to get, instead of even looking at the bill that’s already passed the lower house, or considering the recommendations already made in the JSCT report and the Senate Select Committee’s report. The word “naive” is sure seeming amazingly applicable though.

Linux Australia and OSIA support the proposals made by David Vaile, of the UNSW’s Baker & McKenzie Cyberspace Law and Policy Centre, as a starting point to solving some of the problems in the FTA:

• Tighten the criteria for software and ‘business process’ patent applications.
• Establish a public interest litigation fund to enable Open Source software developers, integrators or users to respond to anti-competitive and tactical patent infringement claims, if they would otherwise be unable to do so.

Ah. Of course. “Establish a fund”. Amazing that the director of a cyberspace law centre would be suggesting the government give money to finance more litigation. Can’t you just feel the self-sacrifice and public interest?

• Official support for global ‘prior art’ research projects to assist research of the viability of such claims.

Wow. Doesn’t that sound a lot like “15. Each Party shall endeavour to establish a cooperative framework between their respective patent offices as a basis for progress towards the mutual exploitation of search and examination work.”? Damn that dangerous FTA and its crazy proposals.

• Change IPaustralia.gov.au page to make lodged patents easier to track, so that developers can protect themselves from bogus patents.

Always good to have a completely trivial but unobjectionable suggestion. Look! See how constructive we’re being! And after all, who could possibly object to something being easier?

• Limit the implementation of controversial DMCA-style* laws, to the extent they’d inhibit development of open, compatible tools for common file formats and networks.
• Introduce US ‘Fair Use’ amendments to Copyright Act. (give us the good pro-consumer parts of US law too!)

These would be the issues covered by recommendation 19 and paragraph 16.62, and recommendation 17 respectively from chapter 16 the JSCT report into the FTA, released on 23rd June.

“We also call upon all firms which purport to represent the interests of the Australian ICT industry and local developers, such as the AIIA, Software Engineering Australia, the ACS, the Internet Industry Association and Software Queensland, to make public statements about this topic. Now is the time to make a stand to keep local software development unencumbered and efficient, so we have a chance to compete in the global marketplace,” concluded Scott.

Now’s the time to take a stand? When the issues have already all been dealt with? How about instead of standing, you sit back down and relax a little instead. Maybe a glass of water? How about breathing into this here paperbag for a bit? There we go. Now doesn’t that feel better?

And then there’s the arrogance it takes for a pair of open source organisations to claim they’re representin gall software developers, and then to claim all other organisations only “purport” to do so.

Yeesh.

Senator Alston, a previous IT minister for the current government, once had this to say about a Electronic Frontiers Australia:

Q: Are you still trying to win Electronic Frontiers over?

A: No, we gave up on them a long time ago.

How much more inaccuracy and ignorance on the part of LA and OSIA is it going to take for the new minister to give up on them, I wonder.