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LinuxTag 2010 EU Processes Presentation
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Transcript of LinuxTag 2010 EU Processes Presentation
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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
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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
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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
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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!
Stay in touch:
http://fosspatents.blogspot.com
http://twitter.com/FOSSpatents
mailto:[email protected]://fosspatents.blogspot.com/http://twitter.com/FOSSpatentshttp://twitter.com/FOSSpatentshttp://fosspatents.blogspot.com/mailto:[email protected]