LinuxTag 2010 EU Processes Presentation

8/9/2019 LinuxTag 2010 EU Processes Presentation

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European Union processesrelevant to Linux

and open source in generalFlorian Mueller

Public Policy Consultant & Campaigner

=> IANAL nor just a lobbyist :-)

FOSS Patents blog:http://fosspatents.blogspot.com

http://twitter.com/FOSSpatents

Presentation at LinuxTag 2010 (Berlin)
http://fosspatents.blogspot.com/http://twitter.com/FOSSpatentshttp://twitter.com/FOSSpatentshttp://fosspatents.blogspot.com/


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Disclaimer

Slides are only an outline don't expect much content


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Background 1 of 2

Author: articles (1985, age 15), books (1986)

US-EU software publishing partnerships,

PR/marketing, localization includingWarcraft II, Diablo I, Starcraft I (Blizzard)

Online gaming startup co-founded in 1996,sold in 2000 to Telefnica group: serversoftware based on Linux and PostgreSQL


4/22

Background 2 of 2

MySQL AB: adviser to CEO (2001-2004),early-stage shareholder

NoSoftwarePatents.com (2004-2005):successfully advocated rejection of EU softwarepatent directive

Defended Real Madrid's interests concerningEuropean Commission White Paper on Sport

Oracle/Sun/MySQL merger control process


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Relevance of the EU

500 million people, 27 countries and counting

GDP: 12 billion euros (2009)

=> largest single market in the world Neither federal nor international

=> supranational

Original objective: peace/stability Actual agenda: economic integration


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EU Structure: Laws & Institutions

Primary law (Treaty on the Functioning of theEuropean Union, TFEU) => constitution

Secondary law => directives/regulations basedon primary law

European Court of Justice => Supreme Court

European Commission => executive gov't European Parliament => US House of Repres.

Council => US Senate + Governors


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EU Influence on IT Industry

Competition (antitrust): cartels; abuse ofdominant market position; mergers; state aids

Legislation and international treaties Working programs (Digital Agenda etc.)

Soft law

Non-voting observer of processes (GPLv3) Procurement

Funding


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Influence goes beyond EU market

IT market is global in nature

Major players can't afford to stay out of EU

Hence, impact on worldwide market


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Past landmark processes fromopen source point of view

Legislation:

Directive on the patentability of computer-

implemented inventions, aka software patentdirective, rejected in 2005 by EU Parliament

Intellectual property rights enforcementdirective: civil law passed, criminal withdrawn

Regulation: Microsoft cases (MediaPlayer/Samba; browser)

Oracle/Sun/MySQL


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Microsoft antitrust cases

Legal basis: dominant market position

Tying:

Case 1: MediaPlayer Case 2: Browser choice

Interoperability (Samba):

Requirement to disclose and license interfaces Even required creation/enhancement of

interfaces

Hefty fines


11/22

Aftermath of Microsoft cases

EU intervention, in addition to interest in broaddeveloper support, appears to have helped =>Microsoft makes all patents available forlicensing, opens more interfaces/formats (latestexample: Outlook), and sponsors LinuxTag ;-)

Others are now bigger threat to open source in

select areas, particularly IBM, potentially Apple Others are now more closed, particularly Apple

Others may have to learn the hard way, too


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Oracle/Sun/MySQL 1 of 2

Announced in Apr 2009, cleared in Jan 2010 byEU and China, March 2010 by Russia

EU concerns related exclusively to MySQL: firstmajor merger control process in which an opensource component was the bone of contention

Monty (MySQL founder) and I did not opposethe merger as a whole, only the MySQL part

Concern over precedent:what if Microsoft wanted to buy Red Hat?


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Oracle/Sun/MySQL part 2 of 2

The concerns:

Removal of key competitive (disruptive) force

Relevance of MySQL: huge installed base

RMS agreed: this project needs a company

GPL gives copyright owner a lot of control

The argument for clearance:

Tiny market share if based on revenues (0.6%)

Oracle plays in a different league

Moglen: GPL'd commons will forever be free

PostgreSQL can step in if necessary


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Oracle/Sun/MySQL as Precedent

Critics of investigation claimed complicationswould discourage open source investment andcreation of startups (sale to closed-sourcecompany as major exit strategy)

Future cases will raise same questions but maylead to difference answer because it was about

balancing the specific pro's and con's


15/22

EU Patent Reform Proposal

EPO patents != EU patents

EPO is not an EU institution

Litigation country by country EU patent (Community patent)

Unified Patent Litigation System =>

EU plus non-EU countries (CH, TR, NO etc.) Package deal of multiple interdependent

international treaties and EU measures


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Criticism of EU Patent ReformProposal

Patent movement will control the newstructures

Lack of checks and balances Captive court will effectively favor patent

holders and broad scope of patentability

EPO (European Patent Office) approach tosoftware patents very likely to be supported

But: German BGH decision is as bad as it gets


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Procedural Difficulties of EUPatent Reform Proposal

Spain opposed to three-language EU patent

Council asked ECJ for legal opinion on

compatibility with Treaty Several countries mostly in Southern Europe

voiced concerns over patent court outside theEU framework

Leaked report on court hearing:http://epla.ffii.org/forum/t-247025/notes-of-secret-u
http://epla.ffii.org/forum/t-247025/notes-of-secret-upls-meeting-at-the-ecj-leakshttp://epla.ffii.org/forum/t-247025/notes-of-secret-upls-meeting-at-the-ecj-leaks


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Digression: Defensive PatentLicense (DPL)

Authors: two UC Berkeley law professors

A license modeled after the GPL

Virtual pool of patents from defensive holders Access equally available to have-nots

Contribute all of your patents or go home

Litmus test and strong political statement

Fair Troll approach


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Digital Agenda; EuropeanInteroperability Strategy/Framewk

Policy program and procurement guidelines

EIF v1.0: open standards == royalty-free

EIF v2.0: current draft accepts FRAND (fair,reasonable and non-discriminatory) licensing

Digital Agenda talks about interoperability and

standards, not open standards Credibility problem of IBM's lobbying frontends

Also interesting: significant market players


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Complaints Against IBM(Mainframe Monopoly)

Longest-standing IT antitrust issue in the world

1956: Consent Decree; lifted 1997-2001

$25B software market => twice the size of themarket for Linux-based software

300 billion lines of legacy code in use

Hardware monopoly; outrageous prices Strategy to transform this into cloud-related

monopoly based on proprietary interfaces


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IBM and TurboHercules

Hercules open source mainframe emulator:founded in 1999; mentioned in IBM RedBook

z/Linux developers also use it extensively

TurboHercules asked about z/OS licensing

IBM asserted IP (patents + more) infringement,including two patents originally pledged

IBM losing its credibility as openness advocate

Google: anyone using patents against opensource is a bad idea, you won't see us do it


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Thank you!

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LinuxTag 2010 EU Processes Presentation

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