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Munich and software patents

As was covered here last week, the high-profile Linux deployment in the city of Munich has been put on a temporary hold while a legal review of possible patent threats. This hold is a direct result of two motions filed recently by a Green Party alderman in the city. The motions, and their aftermath, have created a small storm, both in the city of Munich itself, and among free software advocates and anti-software patent activists. Those who oppose the transition from proprietary to free software in Munich took the opportunity to put a spanner in the works, and that prompted swift reactions from free software advocates; the events seem to have created some stress between the free software and anti-software patent communities.

The motivation behind the alderman's motions was simple: to persuade the city of Munich to put more pressure on German and European politicians to stop the EU's directive on the patentability of computer-implemented inventions. And insofar as they aimed to raise the problems associated with software patents among German politicians, they have met with some success. The city of Munich does appear to remain committed to its free software project, and despite speculation in the press, the only thing about which we can be certain is that, as LWN commented previously, the process will be slowed down while the lawyers do their thing. The latest word is that the delay may not last more than a few weeks.

So why, then, did the Free Software Foundation Europe feel compelled to issue a press release emphasizing that free software is no special case, and that the dangers posed by software patents affect all small and medium enterprises and projects, regardless of their licensing? I asked FSFE President Georg Greve whether he felt that the Green party should be condemned for its actions, and whether the FFII, which could be accused of spreading the flames with a widely-reported press release of its own, should be included in that as well. Mr. Greve described "condemnation" as "too strong a term," but it is clear that they aren't too happy, especially given that they have been actively campaigning against software patents for four years without jeopardizing free software deployments. He asked:

Why did the FFII and Green Party target the currently most prominent Free Software migration and not some proprietary software projects?

In response, the Green Party in Munich notes that it is software patents which threaten free software, and not anybody's attempts to fight the imposition of patents. Ignoring the patent directive, they say, would be far more dangerous than forcing this sort of confrontation.

As Tim Bray noted in his weblog, almost all software in the market probably infringes on some existing software patents, and the issue is one of financial resources (i.e. the ability to defend a case in court), not one of licensing. Greve claims that "[the] link is entirely artificial".

Bizarrely, part of the explanation of events lies in a mistake within the FFII. The study that lists the patents that affect the Munich project was never released as an FFII study; rather, it was a personal document on an FFII member's homepage. Harmut Pilch, the President of the FFII, wrote that he was "surprised by the announcement of Wilhelm Hoegner and the mayor", and that he "learnt from both only through the media". Nevertheless he goes on to defend the message given out by the Green Party, if not the exact methods they used, pointing out that the city of Munich had to assess the risk caused to its project by software patents.

The fallout of all of this is difficult to predict. We can be fairly sure that, barring an extraordinary risk assessment by the city of Munich's lawyers, their Linux project will go ahead. But it's impossible to judge the impact that the news will have on the vote in European Parliament later this year, and on other government projects involving free software. However, if the EU says "no" to software patents, the free software community in Europe could be saved from, possibly, the most damaging legal framework seriously considered to date. The knock-on effect in other countries and trade areas also can't be underestimated. So if steps like those taken by the Green Party in Munich can derail software patents in Europe at the expense of delaying, or even stopping, various free software deployments in government, would it not be worth the sacrifice? In this light the Green Party's actions seem like fine political ju jitsu.

An implicit assumption in that question is that the Green Party's initiative can be followed elsewhere. The only other example of a major deployment of free software in government in Europe is in Extremadura, where local politicians are already firmly against software patents. Employing this sort of technique elsewhere must be done carefully: emphasizing the software patent risk to free software could end up turning politicians against free software, rather than patents. A compromise approach, as Greve suggested, would be:

...for Free Software advocates to always raise the point that their opposition against SWPATs is not on the grounds of Free Software alone, but on the grounds of the entire local hardware and software industry.

It may be too late for effective damage control in Munich, so we will have to wait for the outcome there. But in the future, it would seem wise for anti-software patent activists to be mindful of Greve's suggestion. Free Software advocates must fight software patents, and we must recognize that they are more important than individual deployments of free software. But all the same, we mustn't unnecessarily prejudice politicians and those who make technology decisions against free software for the sake of gains in the fight against software patents.

This article was published by Linux Weekly News (LWN)