ZDNET | 30 Jul 2015

​Open source leader ’livid’ at TPPA software patent capitulation

Negotiations for the Trans Pacific Partnership Agreement appear likely to undo New Zealand’s ban on software patents.

By Rob O’Neill

The president of the New Zealand Open Source Society is "livid" that New Zealand’s Trans Pacific Partnership Agreement negotiating team appears to have already conceded the country’s newly-minted ban on software patents.

"That is just another suggestion of how disconnected the government and the negotiators are from the interests of New Zealanders," Dave Lane said.

"We are entirely unimpressed with the government’s position on this and think they are literally selling us to corporate interests."

Lane said leaks of the negotiating position show that at one point only Mexico was holding the line on software patents and New Zealand appeared to have already conceded.

The implication is New Zealand’s new software patent law, passed just two years ago, will need to be reversed if the TPPA is inked.

"I think it would be fair to say that I haven’t seen any indication that there is anything positive for New Zealand in this at all," Lane said. "The only motivation that I’ve been able to discern for taking part in the process is the somewhat dogmatic idea that if we are not part of this then we are going to miss out on something."

For its part, the Ministry of Foreign Affairs and Trade told a Parliamentary Committee recently that it will not accept a TPPA that it considers to entail more costs than benefits to New Zealand.

Lane, however, said he is concerned to hear people like trade minister Tim Groser say they have been working on achieving such an agreement for thirty years. They appear to be too close to the negotiations.

"They’ve fallen in love with the house and they won’t listen to common sense when the price goes too high," he said.

One Twitter commentator compared the concessions given by New Zealand so far to "playing strip poker in the nude", Lane said.

"We at the Open Source Society were heavily involved in that process to get the software exclusion which we see as absolutely crucial. We would be appalled if we had to take on the US’s legislation because we think it is fundamentally broken."

Lane said the cost of the concessions hasn’t been calculated.

"There seems to be a focus on only selling the upsides and accounting for the possible benefits in very narrow areas such as dairy," he said. "The net benefit to New Zealand is almost certainly going to be strongly negative."

Lane said if New Zealand hobbles the domestic software market by adopting US strong IP, strong patent and copyright terms, then we are effectively "killing in the cradle" an industry that is projected to soon surpass dairy.

Strong IP, he said, was used by incumbents to block innovation and competition from would-be competitors and disruptors.

A strong software industry offers a weightless export that allows New Zealand to rise above the commodity fray of dairy, meat production and timber.

Lane said he was also appalled when New Zealand postponed legislating a new copyright law pending the TPPA negotiations.

"Surely if the government had decided something that went against the tone of the TPPA it would have given them another bargaining chip? By pre-emptively avoiding making any decisions they were conceding before they even negotiated.

"That was one of the things that gave me a very dubious opinion of New Zealand’s negotiating capabilities."

Lane said the justification for patents is that they encourage people to create. However, he said, people don’t need patents to encourage them to build software.

"Clearly people develop software with almost no incentive, namely open source. The most widely -used computing system in the world by far, which is Linux, is entirely open source.

"There is a huge amount of work done in software that is not dependent on the incentive of patent protection."

The main practical use of software patents is to kill competition, he said. Proprietary companies work as hard as they can to avoid open standards and avoid open source competition.

One of the ways they can enforce that is by accusing people of patent infringement, accusations which are often baseless but too expensive to defend. That has resulted in the death of hundreds if not thousands of would-be pioneering companies.

"It’s a huge threat to the entire open source ecosystem," Lane said. "But all software development and all software developers are threatened by software patents regardless of their size or their business models."

New Zealand has been winning such developers from overseas, he said, because of our software patent exclusion, which was seen as forward-looking and savvy and providing protection during the early years of software commercialisation.

"I would argue that the Open Source Society’s position is that we are deeply concerned that our government thinks that, for example, the utter secrecy of the TPPA process and even the text that is being negotiated, the idea that it’s acceptable for that to be kept secret from the citizens o all the countries that will be fundamentally affected by it demonstrates a lack of principle that we find deeply disturbing."

Lane said the fact citizens have not been able to see the text when 600 corporate lawyers in the US have is a "very disturbing contradiction".