Last week, a group of Open Source pioneers joined a running battle over the future of software patents in the European Union. Over the next several weeks, Europe may adopt the same legal framework that has allowed a bunch of con artists to wreak havoc on the U.S. software industry. Yet it's also possible Europe will take the first step towards dumping software patents once and for all--and force the United States to decide whether it wants to pay more than lip service to the idea of innovation.
For Linus Torvalds, along with MySQL creator Michael Widenius and PHP developer Rasmus Lerdorf, the time was right to get involved. European law is currently unclear on the legality of software patents; more than 30,000 are on the books, but few are enforced. Pending legislation, however, would legalize software patents, unleashing a flood of litigation and setting off a mad rush to secure new patents. Torvalds and his colleagues know this process could quickly doom open-source software projects, few of which have the resources to compete in a legal land-grab or to defend themselves against licensing demands and infringement claims.
Torvalds, Widenius and Lerdorf recently addressed the EU Council in an effort to prevent a legislative end-run that could approve the measure without a parliamentary vote. Poland, which like many Central European nations boasts a small but thriving software industry, has already vowed to use its spanking-new swing votes to kill any pro-software patent legislation. In addition, European popular opinion has lined up solidly against the patent proposal, as have groups representing hundreds of thousands of small businesses and entrepreneurs. Taken together, all of this may be enough to derail the measure--or it may not.
Clearly, it matters whether the world's largest economic federation--including 25 nations and 455 million people--accepts or rejects the intellectual and legal reasoning behind software patents. If Europe buys the argument that copyright protection just isn't enough, in spite of decades of evidence to the contrary, open-source software developers on both sides of the Atlantic could soon find themselves in an unbelievably expensive mess.
If Europe comes to its senses in time, however, then reform efforts in the United States could benefit as well. American technology firms have long enjoyed the advantages of an economic and legal system that promotes innovation, flexibility, and cutthroat competition. What will they make of European competitors that don't have to bear the cost of endless litigation, unnecessary licensing fees, and the nagging fear that somewhere, somehow, a hungry lawyer is eyeballing every line of code in your new product against their client's patent claims?
Good luck, Linus.