You have a stake in the software patents issue

Last week I wrote about the multimedia patent minefield and how the proliferation of digital media patents drove the BBC to the unorthodox step of developing its own open source media coder/decoder software (or “codec,” for short). Called Dirac, after the British physicist Paul Dirac, the first version is scheduled to be complete by the end of this year, and experimental releases are already available.

Dirac compresses video using a mathematical technique known as wavelet compression, a method that differs enough from those employed by other, existing codecs that its developers believe it isn’t covered by existing multimedia patents. Unfortunately, they can’t be 100 percent certain. The group within the BBC that’s responsible for developing Dirac lacks the funds to properly research all the thousands of patents that might possibly come into play.

Should any conflicts arise, Dirac’s developers hope to be able to alter their code to remove any possibly infringing techniques. In the meantime, though, the BBC has already embarked on a far more pragmatic alternative: It’s patenting the Dirac technologies itself.

Hypocrisy? Not at all. Dirac will remain open source and whatever patented technologies it may contain will be licensed to any and all users of the codec royalty-free. Patenting Dirac’s core technologies is simply the best, and perhaps only, way the BBC can protect itself against rivals and profiteers who might try to use the patent system against it for their own gain.

It’s an uncomfortable situation, but it’s one that isn’t unique to the world of multimedia. All sorts of software algorithms have been successfully patented by American companies, ranging from techniques for data compression and encryption to Amazon.com’s notorious patent on One-Click Shopping.

Defending against an infringement claim from one of these patent holders might be a viable strategy for a corporation with deep pockets, or even a well-funded startup. For open source projects, however — which often are about as far from deep pockets as you can get — such a lawsuit can be as good as the kiss of death.

The BBC does have one thing going for it, though: It isn’t in America.

Unlike the United States, so far the European Union doesn’t recognize software inventions as being patentable. That loophole alone has allowed countless open source projects to continue to exist, despite the fact that the patented algorithms they implement make them illegal to distribute within the U.S. Much of the multimedia-related open source software available today owes its existence to its patent-free status within the European Union.

The patent establishment, however, hasn’t let that fact go unnoticed. Powerful lobbying forces have been working toward establishing an American-style software patent system in the EU. Fortunately, in early July the European Parliament voted by an overwhelming margin to reject software patents — for now. But the fight is far from over.

What’s more, in America we have it even harder. Here, a vast number of software patents are already on the books, and even more are being added all the time.

The bottom line is that if your company is planning an IT strategy around open source, then you have a stake in this issue. The current system of software patents is simply bad for business — for smaller vendors and open source projects that are struggling to compete, and for the countless other companies who rely on their efforts and innovation. As members of the business community, it’s time to make our voices heard.