The Free Software Foundation appears to be turning, slowly but surely, into the Free Spamming Foundation.
Recently I criticized the FSF's belated statement on Oracle's patent infringement suit against Google for a host of reasons. Mostly, I felt that it was misleading pro-GPL propaganda. Note that I vigorously defended MySQL's GPL-based business model and "copyleft" in connection with Oracle's acquisition of Sun. But I reject overstatements of the GPL's (especially the GPLv2's) ability to deal with patent attacks. In addition to that, I criticized the FSF's call to spam Oracle CEO Larry Ellison's email account.
Now I just saw that spamming indeed appears to be a cornerstone of the FSF's strategy concerning patents. Its newest target: the United States Patent and Trademark Office (USPTO).
Under the headline "Encourage the USPTO to stop issuing software patents; deadline September 27", the FSF issued an urgent call on the community to answer a request for comments by the USPTO concerning the interpretation of the Supreme Court's Bilski ruling. For the future evaluation of patent applications, the USPTO wants to write up new guidelines reflective of the Bilski decision.
The Bilski case was an important one indeed, and I reported on it from several angles. In an immediate reaction, I described it as a major disappointment for the NoSoftwarePatents cause; I listed the top ten Bilski losers, among them the FOSS movement; I explained that doing away with software patents on the grounds of them being too abstract is a losing strategy; I also commented on IBM's outrageously cynical submission spitting in the face of the FOSS movement and on Google's position, which definitely didn't speak out against the patentability of software.
So I don't deny that the conclusions the USPTO is now going to draw from the Bilski ruling are an important step. However, spamming the USPTO, whose only job it is to apply the law (not to make it), is an ill-conceived and counterproductive approach. It's like protesting against foot soldiers. It won't do away with a single software patent. It won't reverse the defeat that the Bilski decision was for the abolitionist movement. But it will for sure reflect very unfavorably on the FOSS movement as a whole.
Even though consultations such as this one are open to the general public, patent law is a complex subject requiring a vast amount of knowledge, so what the USPTO really hopes to receive is input from professionals. Let me quote from its request for comments:
The Office is especially interested in receiving comments regarding the scope and extent of the holding in Bilski.
In other words, this is about legal interpretation. The Supreme Court took a position on some aspects of substantive patent law (the rules for what is and what isn't patentable), though not on as many as a lot of people hoped. Now it's about drawing the right conclusions from it.
This isn't going to be a "democratic" decision-making process. It's not a vote on a TV show. If the FSF mobilized a million people to call for the abolition of software patents, it still wouldn't change the basis on which the USPTO has to operate, which is the law as it stands and as the courts, especially the highest one of them in the US, interpret it. Spam doesn't contribute anything of substance. It's just an annoyance and a distraction.
It would be perfectly appropriate for the FSF to make a substantive submission to the USPTO, or to encourage FOSS-friendly patent professionals to do so. But instead of arguing the real issue, the FSF just provides copy-and-paste paragraphs and general guidance and asks the community to tell the USPTO -- among other things -- how software patents "take freedom away from all computer users". Software freedom is a vision I like, but it's not a legal concept. It's not in the Constitution, it's not in the Supreme Court's Bilski decision, and it won't play a role in the USPTO's new guidelines.
An email campaign like that is a nuisance (to put it diplomatically). The USPTO doesn't make the law; it doesn't have the authority to interpret it like a court; it simply has to operate within the given framework. The FSF tries to put some blame on the USPTO but doesn't understand that US patent law was indeed designed to evolve expansively as new technologies are invented and adopted. Restrictions require democratic decisions, and the USPTO isn't a democratic decision-making body. Those decisions are the prerogative of Congress.
The FSF apparently knows that it can't persuade Congress of its anti-IP agenda. So it firstly rested its hopes on the Supreme Court (which made it pretty clear in the Bilski decision that if you want to exclude anything from patent-eligibility, you have to talk to the lawmakers, not to the judges) and now tries to pressure the patent office.
Let me point out that there are indeed situations in which it makes sense to mobilize citizens for email campaigns. In particular, if lawmakers are in the process of forming opinions and preparing decisions, it's perfectly in line with democratic concepts to let citizens voice their wishes, hopes, fears, concerns, doubts, whatever. Our directly elected representatives should listen to us.
Of course, it also depends on how, when and on what scale such campaigns are conducted. There are many circumstances that one must consider. Wherever such a campaign is inappropriate, it backfires. It gives the impression that the ones conducting it have lost on the basis of reason and resort to desperate and defiant spam tactics.
In a case like this request for comments by the USPTO, the only appropriate (and the only productive) input will have to be presented professionally, and there's no strength in numbers.
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