WIPO 1. The World Intellectual Property Organization, based in Switzerland, which seeks to ensure all intellectual property falls into the hands of global corporations and stays there. 2. An international group sowing the seeds of revolution.

Bruce Perens, among others, feels that the biggest threat to free/open source software today does not come from firms like Microsoft, but rather from bad law. Unconstitutional law. Like our American software and business-method patents, for example.

Perens points out in his rant against patent law that the constitutional basis for all of our copyright and patent law is contained in this sentence:

"Congress Shall Have Power To [...] promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

So if software patents are not actually promoting the progress of science and useful arts, and Perens contends that there is no evidence to suggest that they are, they are unconstitutional. He also points out that many people believe that most patents claimed in the U.S., as many as 95% of all existing patents, may be invalid.

The law requires that you actually have to invent something in order to legally patent it. If there is evidence of an earlier patent for the same idea or method or invention, or even is there is only evidence that someone else has done the same thing in the past, your patent is useless.

Perens obviously feels that the best fix for software patents is to abolish them. He also points out the paradox of two of the free software community's largest corporate friends - HP and IBM - are among the most feared in the world because of their patent inventory.

I ran into the reverse of that paradox recently after having written about Microsoft's loss of a patent infringement suit for NewsForge. Don Marti, Editor in Chief of Linux Journal, called the story "tedious Microsoft-bashing" and suggested that the villain in the piece was the patent system, not Microsoft. From my point of view, I was taking friendly-fire as a result of the conflation that occurs when bad things happen to bad people.

I suppose that Marti's point is that we should be more concerned about the greater evil than about pointing out - as I had done - that while MS pretends to be a champion of proprietary software and intellectual property, it has no respect for the IP of others. But I think he missed the biggest danger completely. It's not patent law alone that is our greatest threat, it is patent law in the hands of firms with bad intentions, like Microsoft or SCO.

So I respectfully disagree with Marti. But then I disagreed with the EFF a few years ago when they decided to partner with Microsoft on a privacy initiative. Since then, of course, Microsoft's egregious sins against privacy embodied in its terms and conditions for use of Passport have come to light and the partnership between those two unlikely bad-partners has been abandoned.

My position is that two bads don't make a right. If Microsoft's duplicity and deception in its public image in regards to intellectual property are bad, then they are bad regardless of the merit of any lawsuit against them. And if software patent law is bad - and I don't hear anyone arguing for it except WIPO and large corporations - then it is bad regardless of whether it is used to harm free software or Redmond. In this case, I think the only correct position is to condemn both Microsoft and patent law.

Microsoft, of course, is doing all it can to bolster and strengthen my position. A case in point: its behind-the-scenes activity recently involving WIPO's apparent interest in open source software.

According to a recent story in the Washington Post, WIPO had been in correspondence with James Love, head of the Consumer Project on Technology. Love had contacted WIPO in hopes of setting up a meeting to discuss the advantages of open source software in specific applications like drug research and critical infrastructure usage. A WIPO official was then quoted in a magazine article as saying they were excited about the meeting. That's when Microsoft got in the act.

They immediately began lobbying the Bush administration at the State Department and the Patent Office to "squelch" the meeting. They sent in their favorite open source initiative snuffer, collection agency, and storm troopers, the Business Software Alliance as well. As they did in Austin in the public hearing of SB 1579 this past year, the BSA rep told everyone who would listen that they weren't really against open source, they just didn't want to see it getting an unfair advantage. Clearly, being discussed falls into that taboo territory. Microsoft and the forces of darkness prevailed. The WIPO caved in and has canceled the plans for the meeting on open source.

Meanwhile across the pond the EU is moving towards adoption of U.S. style patent law. Currently few companies outside the U.S. allow patents for software and "business methods." Kieran McCarthy, writing for the contrarian website The Register, noted that the battle over the issue is heating up as the decision date for the European parliament (September 1) grows nearer.

McCarthy writes:

"This is music to our ears. On the balance of all the evidence, the case for allowing software patents into European law is far from argued. Moreover, the evidence from the US is that introducing this proviso into law will have an overall negative effect on the IT industry. It smacks more of protectionism than free and open markets. And it would be a severe blow against the fledgling open source community which has already achieved so much in a very short period of time."

Ask yourselves, dear readers, who might benefit from any harm that comes to that "fledgling open source community" and you might see Bill Gates' hand at work behind the curtain.

Remember the original "Halloween Documents"? In "Halloween II", Microsoft wrote "The effect of patents and copyright in combating Linux remains to be investigated." Eric Raymond noted in a comment in the document that "This memorandum also suggests that Linux could be attacked through patent lawsuits."

The SCO Group, aided and abetted by Microsoft, is in the midst of a huge media campaign based on unsubstantiated IP claims against Linux while they are ostensibly suing IBM for a contract dispute. They are doing exactly what Microsoft has done so often in the past - posing as a champion of intellectual property rights while abusing it by using it as a weapon against their foes.

Behind all of this a revolution is simmering. It's a revolution against what Mussolini called corporatism and the rest of the world called fascism. When corporations like Microsoft hold the reins of power and use the law for their own greed and power hungry aims. Wouldn't it be ironic, now that the Iron Curtain has come down, if capitalism fell from the public's favor and communism ascended because a few couldn't control their own greed and lust for power. It could happen.

Internet Resources:

Perens on patents

Strike three for Microsoft IP

The quiet war over open source

Protesters to march against EU software law

Halloween Documents (II)