Microsoft's Shared Innovation Initiative and its evolving approach to intellectual property rights

Microsoft has announced a "new IP strategy for a new era of shared innovation," giving customers ownership of new patents and design rights resulting from their collaboration with Microsoft, with Microsoft merely getting a license to use those technologies for the improvements of certain "platform technologies" such as Azure, Office, and Windows. Microsoft is even willing to support contributions to open source projects at a customer's request.

I haven't done any consulting for Microsoft in more than four years, and even while I was doing some work for them (such as on standard-essential patents), I never received any confidential information about their strategies or the terms of their license agreements. Whatever I know, I know from publicly-accessible court filings, one of which indicated that Samsung at some point paid north of $1 billion in Android patent royalties to Microsoft during a 12-month period.

As an anti-software-patent campaigner (2004/2005), I was profoundly worried about Microsoft using its patents against Linux and other free and open source (FOSS) software. A few years later, I realized three things:

1. In certain contexts (such as the i4i case), Microsoft actually took pro-defendant positions.

2. While I understand that many people disliked the idea of Microsoft charging patent license fees to Android device makers, there was no exclusionary use of patents. To the extent Microsoft sought injunctive relief, it merely wanted to bring Android OEMs to the negotiating table in order to reach a license agreement. Depending on the specific terms, licensing can also be anticompetitive, but by now we all know that none of this prevented Android from succeeding, and dozens of companies (many of which would have the resources and sophistication to defend themselves in court) chose licensing over litigation.

3. I considered many free and open source software activists hypocritical because they criticized Microsoft over almost anything it did in connection with open source while giving the rest of the industry a free pass and intentionally turning a blind eye to some other players' clearly abusive conduct. Just like other companies orchestrated antitrust complaints against Microsoft, Microsoft was in some cases proven and in other cases merely suspected to be behind initiatives targeting other large players. But if there were things that deserved to be criticized, who cares? In the information and communications technology sector, lobbying entities and NGOs that raise issues serve an important hygienic function, provided there really is fire and not just smoke.

During the "Smartphone Patent Wars" it happened for the first time that Microsoft faced the threat of injunctive relief as a result of litigation brought by another large corporation: Motorola Mobility. That kind of adversary, which at some point belonged to Google, wasn't just the kind of troll that you can pay to go away (and that usually won't satisfy the eBay standard for patent injunctions). "Googlorola" wanted to gain so much leverage over Microsoft that it would have been forced to cease and desist from all litigation against Android device makers. Even during the early stages of its dispute with Motorola, Microsoft still made an often-cited filing with the Federal Trade Commission in which it advocated, or at an absolute minimum appeared to advocate, injunctions over standard-essential patents (SEPs). But that changed not much later, and by now most major players, except for mostly failed businesses that increasingly rely on patent monetization, agree that SEP injunctions shouldn't be granted. Two years ago, Google joined the Fair Standards Alliance, which promotes SEP licensing on FRAND terms.

I had already done some work for Microsoft when I first took a clear "no SEP injunctions" position on this blog. I knew that Microsoft's standards group wasn't taking the same position at the time, but no one even tried to discourage me from voicing my position on this.

In recent years, Microsoft's IP-related positions and priorities have apparently evolved further.

The emphasis in announcements of patent license agreements between Microsoft and Android device makers appeared to shift to bundling deals: Microsoft was apparently very interested in getting companies to preinstall certain Microsoft Android apps, such as Skype. The derogatory term for this is "bloatware," and no one knows by how much Microsoft lowered those license fees, but analysts speculated that Android device makers saved a ton of money by bundling Microsoft's apps.

Meanwhile, Windows Phone has been discontinued, so Microsoft has surrendered to Apple and Google with respect to mobile operating systems. It still has the Windows desktop and server business, but its growth strategy is centered around apps and services. So far, Wall Street loves that new focus, but it remains to be seen over the years whether Microsoft can fend off competition in markets in which it won't have the benefit of making the underlying operating system. I don't mean to be negative, but the jury is still out on this.

The most surprising and--to me--most disappointing indication of Microsoft now being more interested in apps and services than in its own operating system platforms was when it filed an amicus curiae brief last year with Red Hat and HP, supporting Google against Oracle with respect to "fair use." Parasitic Red Hat and Oracle-obsessed HP had previously sided with Google on copyrightability; Microsoft hadn't. But with respect to "fair use" (which Android's use ofthe Java APIs isn't according to the United States Court of Appeals for the Federal Circuit), Microsoft actually sided with the weak-IP camp.

I don't understand why. Maybe Microsoft would like some more freedom with respect to its own use of the Java APIs (in some enterprise applications and on the Azure cloud); maybe Microsoft is more interested in a constructive relationship with Google (unlike Oracle, Microsoft stopped funding various industry groups accusing Google of abusing its search engine monopoly); maybe Microsoft wanted to curry favor with the open source community this way; or maybe Microsoft is interested in "balance of power" (the historic British take on continental European politics) and is afraid of Apple being or becoming too powerful, so it may not want Android's success to be compromised by the Java copyright situation.

Whatever the reason or combination of reasons may have been, I'd never have expected Microsoft to support Google against Oracle on "fair use." By way of contrast, the Federal Circuit concluded: "There is nothing fair about taking a copyrighted work verbatim and using it for the same purpose and function as the original in a competing platform." The "old" Microsoft--the Windows-centric one--would have been interested in reasonably strong protection of its intellectual property in APIs. The new Microsoft is apparently more interested in access to other companies' APIs.

I interpret yesterday's announcement of the Shared Innovation Innovative as an indication of Microsoft continuing to modify its approach to intellectual property. It's still far from advocating the abolition of software patents, but it appears to be trying hard to be part of the sharing economy in some other ways.

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Has the Pirate Party boat sunk? IP-skeptical platform decimated in Swedish election

In last year's European election, the Pirate Party of Sweden garnered 7.1% of the vote, enough for one seat under the EU treaty in place at the time (and two seats following an EU reform treaty). But in yesterday's Swedish national election, the IP-skeptical platform saw its support decimated: a dismal 0.7% according to a television station's exit poll.

That's about the level of the party's first-ever participation in 2006. Sweden has a 4% threshold to win any seat in its national parliament, and it appears very unlikely that the Pirate Party will ever surmount it.

Its German sister party achieved 2.0% in last year's German federal election, also far from the relevant threshold (5% in that case). The German chapter has a lot of debate over whether it's too much of a single-issue party and should become more of a general left-wing liberal party.

I'm not at all surprised that the Pirate Party fails to become a real political force. Three years ago, a MySQL executive made me known with Rick Falkvinge, the party's founder, by email, and in the ensuing correspondence I expressed very serious doubt that the Pirate Party was going to replicate in our times the rise of the Greens in the 1980s. I also expressed my concern that the party's approach -- including its provocative name -- might even discredit the cause of reasonable and balanced IP policy.

Nevertheless, I gave the German Pirate Party a signature last year to support their participation in the federal election (though I didn't vote for them in the end because they took an extremely radical anti-security stance shortly before the vote). I kept my fingers crossed for the Swedish Pirate Party in last year's European election. And I liked Christian Engström's clear condemnation of counterfeiting in the European Parliament two weeks ago.

As you can see, this is pretty complicated, so I have to elaborate on my views to be clear.

A hackle-raising name draws attention at the start but bogs you down in the end

I believe the Pirate Party owes to its name both the enormous attention it received early on and its apparent inability to evolve into a serious political force.

When the party was founded in support of the Pirate Bay file-sharing platform, that name was its key success factor. The organization obviously never meant to support piracy on high seas, or counterfeiting of physical goods. But the idea of a party expressing (to say the least) a great deal of sympathy for the illegal copying of software (programs, music, movies) was shocking, and a shocking appearance can be a way to get listened to and talked about.

To a lot of grown-ups, this symbolized an unbelievable generational divide: on one side, the law-abiding establishment; on the other, a movement of the Internet generation that appeared to advocate lawlessness by the terabyte.

Not only was the name shocking. It was also cool to be a pirate. It was like a great theme for a costume party. Calling oneself a pirate looked like the ultimate expression of anti-establishment protest, and that resulted in a lot of activism in Sweden and the creation of smaller sister parties in many other countries.

That kind of radically provocative positioning had all the ingredients of a one-hit wonder. Unlike the Greens, whose initial environmentalist focus emphasized a positive notion.

Software piracy is a serious problem

Rick basically argued (as do many other activists) that the word "piracy" was a gross overstatement of the nature of the problem. The party as a whole often tried to portray pirates as freedom fighters, which is a major distortion in my view.

I actually know both sides of the argument. In the early 1980s I had (like many millions of people) a Commodore 64. I previously had an Atari 2600 video game console, and I had to buy (or borrow) every game cartridge I wanted to play. Then some friends told me that a C64 was a better deal because I could get the games "for free". In other words, I could get copies from them. Plenty. Back in those days, I couldn't even count how many games I had. I only counted the number of floppy disk boxes.

There was also a fair amount of software I bought. Sometimes I didn't want to wait until I could obtain a pirated version. Sometimes I really wanted to own the thing, or I needed the manual. But I never paid for most of the stuff I played.

My confession goes even further: on a few occasions I also acted as a "cracker", which means that I removed copy protection schemes from commercial software in order to make it copyable. The funniest incident was in the summer of 1986 when a friend brought along a World Cup game for the C64 that he had purchased and we went to the school's computer room. They had a few C64s there, and it took me only a few minutes to disable the copy protection by effectively skipping the code section that checked on it. So several of us went home with a new game.

What's important to consider is that those were the early years of personal computing. There was clearly a lack of awareness for the illegality of those activities. We all knew that there was a theoretical risk, but we doubted that we were going to get caught. We didn't understand that it was unethical behavior, but that doesn't mean that it wasn't.

Post-C64, no more piracy for me

My perspective on this changed rapidly, and fundamentally, when I found myself on the producing side. After a few years as an author of articles for computer magazines and of ten computer books, I became involved with the business of software publishing.

The piracy problem also affected the sales of some Blizzard Entertainment games (especially Starcraft I and Diablo I) in Germany in the second half of the 1990s. At the time I was Blizzard's German consultant and representative.

I can say with a clear conscience that I haven't done any illegal copying, let alone "cracking", ever since the Commodore 64 days. I threw away those floppy disk boxes at some point. Every piece of software I ever used on a PC was properly purchased, or it was (of course) open source. I'm so careful that I only install a second copy of a program on a portable computer if the end user license agreement (EULA) permits it.

This isn't only the right thing to do, and it's safe not only in a legal sense. It's also one of the reasons for which I've never been hit by a computer virus.

So today, I don't associate anything positive with "piracy". Why did I then lend a signature to the Pirate Party even once?

Anti-software-patent activists joined the Pirate Party movement

There are significant overlaps between the Pirate Party and the anti-software-patent movement.

When I read last year about the Swedish Pirate Party's electoral campaign, I saw that Christian Engström was their top-listed candidate. I immediately sent him a message to wish him luck.

Christian once gave an important impulse that contributed to my decision to fight against software patents. On a mailing list, he saw a question I asked, but he felt that MySQL (the company I was advising at the time) wasn't active enough. He told me that view in a rather rude way: not on the list, but by a private reply. It wasn't my fault that it took MySQL some time to decide on what to do (and MySQL supported the cause like no comparable company did relative to its company size). So I basically agreed with Christian. It was necessary to do more.

A few months later, with MySQL's help, I started the NoSoftwarePatents campaign. Christian provided the Swedish translation. He was by far and away the fastest of all translators, and the feedback I got from native speakers of Swedish was extremely positive.

I felt that Christian was a good choice for his party because he's a professional, not a radical. I was confident that he as a person wasn't going to harm the cause of balanced IP policy.

There are also several other "brothers-in-arms" from the fight against the EU software patent directive who joined the Pirate Party, in Sweden, Germany and other countries. So despite my fundamental disagreement with them on copyright and security issues, I wished them luck I hoped that they would raise the profile of IP issues on the political agenda, and I believe that's what they have already achieved.

But I'm afraid for them that they will remain a fringe party forever. At some point they may realize that they're an activist group, a non-governmental organization, even though they will probably continue to call themselves a party and pursue parliamentary ambitions for some more time (until possibly being absorbed by the Greens, with whom the Pirates already caucus in the European Parliament).

Those pirates who really want to shape intellectual property policy will be better advised to join the more established parties and try to leave a mark on their positions. But that will require them to fully appreciate the legitimate interest of the knowledge economy in strong intellectual property rights.

There's much more at stake now than in the heyday of the C64.

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Who lost Bilski vs. Kappos besides Bilski & Warsaw? Ten answers

Yesterday's Supreme Court ruling in re Bilski was unfortunately a clear victory for those favoring an expansive patent system and the patent inflation it entails. The two "inventors", Bernard L. Bilski and Rand Warsaw, saw their patent application thrown out, and that makes them the losers of the court proceeding, but few people will care about them now. Steven Vaughan-Nichols accurately wrote that Bilski loses, but the patent madness continues.

There are many losers of this outcome, and here's my top ten (besides Bilski and Warsaw -- may they live long and prosper without the patent they applied for):

1. The free software and open source communities
2. Software patent abolitionists
3. Small and medium-sized companies who can't or don't want to play the patent game
4. The proponents of bogus treatments: Linux Foundation, Open Invention Network etc.
5. The Patent Absurdity movie
6. Red Hat
7. Google's foray into new markets (Android, WebM)
8. Salesforce.com (Marc Benioff)
9. The "captive court" theory
10. IBM's open source credibility

Let's go over them one by one.


1. The free software and open source communities

The notion of Free Software is fundamentally incompatible with software patents. Ciarán O'Riordan, the director of the EndSoftPatents.org campaign, made a statement at a European Commission hearing four years ago where he accurately said that software patents and free software don't mix whether you cut the price of a patent in half or double it.

But the other part of FOSS, the open source community, is equally affected. While it doesn't emphasize the concept of freedom as much as Richard Stallman and his followers, I know many open source advocates who are no less opposed to software patents than RMS is.

I venture to guess that the Bilski ruling will represent an obstacle to GPLv3 adoption. I wish the whole world could accept the patent clause in GPLv3, which is meant to counter patent licensing deals by FOSS companies and other entities, but under the circumstances it will be very hard to convince businesses and other contributors to FOSS development that this our-way-or-the-highway approach works in the world we (currently) live in.

I am forced to say this to my dismay. I know that some may try to hold this against me but I spell it out like it is.

2. Software patent abolitionists

As the founder and former director of the NoSoftwarePatents campaign, I'm part of this movement. This isn't a concession speech on behalf of the cause. But we are at a juncture where we have to face the recent lack of progress in the political arena as well as in courts. No one is ever beaten unless he gives up the fight -- but if a certain approach doesn't work over an extended period of time and on different continents, then it may be time for a better mousetrap, ideally one that can pave the way toward abolition further down the road.

The majority of the justices took a clear pro-patent position. A minority of the court -- which is also among the losers, especially Justice Stevens -- supported certain pieces of well-reasoned criticism of the institutionalized excess of the patent system.

The SCOTUS determined that courts will have to support software and business method patents unless lawmakers intervene. However, the massive support that big industry lends the system and the parameters that globalization brings with it favor the other camp.

Pieter Hintjens, a former president of the FFII, once predicted that the abolitionists of software patents (if not all patents) would succeed more quickly than the opponents of nuclear energy. The anti-nuclear movement has achieved something. It took that movement decades to score a few partial victories, but then they didn't have BlackBerries, Wikis, Twitter and Facebook to organize themselves in the beginning. The problem with abolishing software patents is that it's almost binary: you either do away with very large parts of the entire patent system (which may be the right thing to do, but it's quite a challenge) or you have to content yourself with minimal restrictions. That's tough.

3. Small and medium-sized companies who can't or don't want to play the patent game

While big industry is united behind the patent system, not just in the IT industry but beyond, small and medium-sized enterprises (SMEs) are different.

Most patent trolls are SMEs, and they obviously cheer the Bilski decision. There are also some companies who are indeed practicing entities but their products or services are very limited. Think of someone selling a copy protection mechanism on which he has a patent or two: he likely won't need anyone else's patents to build his product, so the system works for him.

The SMEs who suffer are those who build larger programs. In a few hundred thousand lines of program code, any single line could theoretically infringe someone's software patent. Practically, you could probably find thousands of patents that might read on such a program. If you don't have the legal department and other resources to fend off infringement claims, and if you just don't have enough patents yourself to cross-license with large players on attractive terms (ideally without money changing hands), then the Bilski ruling has just made it even harder for you to innovate.

In light of that, I think SMEs -- like the FOSS ecosystem, which includes many SMEs -- should increasingly make the distinction between more and less harmful ways in which others use their software patents. I wrote about that recently. Trolls are a problem, but strategic holders with an exclusionary agenda are even worse.

4. The proponents of bogus treatments: Linux Foundation, Open Invention Network etc.

I have been vehemently opposing for a long time any attempts to lull the FOSS community (and others, especially political decision-makers) into a false sense of security concerning the risk that software patents represent.

I criticized IBM's "pledge" of 500 patents back in January 2005, on the very day it was announced. Five years later, I published evidence for IBM's betrayal of the pledge.

In a November 2005 slashdot op-ed, I explained why patent "pledges" and "pools" are fundamentally flawed approaches. That was the day on which the Linux Foundation (then named OSDL) started its Patent Commons, which I guess has never helped any FOSS developer the slightest because programmers don't look up a list of "pledged" patents when they go about their work. They want to go ahead and write code and deal with patents subsequently.

In recent weeks, I have discussed the Open Invention Network (OIN). I described it in this "OIN demystified" posting. Last week I discussed its less than informative press release on its new Associate Member program. But I actually wish the OIN could do a better job and give itself a trustworthy legal structure. That's why I suggested four alternative ways to address the biggest problem I have with the OIN, which is its ever-changing and arbitrary scope of licensing.

After the disappointing Bilski ruling, I encourage everyone else in the community to ask yourselves three questions:

1. Haven't all those smokescreens been a major distraction from the planning and pursuit of better initatives? That wasn't only my concern. Richard Stallman and Bruce Perens also made such statements back in 2005.


2. How can the existing initiatives be improved? For the OIN, I tossed out suggestions, and I'll think more about this.


3. Do new initiatives such as the Defensive Patent License (DPL), possibly coupled with active patenting by the community, have new elements to offer that can make a major difference?

5. The Patent Absurdity movie

Two months ago I criticized the Patent Absurdity movie for several reasons.

Obviously, Patent Absurdity wasn't meant to be a pleading for the SCOTUS to consider, although some hoped it could indirectly influence the outcome. But given that the decision didn't even mention software patents directly (although it is a very strong indirect endorsement of them), the movie's close connection with the Bilski case makes it even less useful.

The idea was a good one. It needs a better implementation. One of the technology policy movies that I really like is Epic 2014. Video can be quite powerful, and I hope that a successor to Patent Absurdity will make a more compelling case and will be less interview-centric, especially since at least a couple of the persons interviewed aren't perfectly credible opponents of software patents in my view.

6. Red Hat

Unlike Novell (which has a licensing deal with Microsoft in place) and Canonical (which became the first GNU/Linux distributor to sign a deal with MPEG LA), Red Hat has so far refused patent licensing as "a tax on innovation". Red Hat's CEO Jim Whitehurst recently blasted software patents, but he may have to bite the bullet.

Red Hat has also contributed to the mess. Red Hat's own patent promise is weak, and many in the community know it. The DPL may be an opportunity for Red Hat to prove it's truly defensive. What's far worse is that Red Hat partners, commercially and politically, with IBM and other proponents of software patents on different initiatives -- pretty much all of the ones I mentioned on my list of bogus treatments (section 4 of this posting). A lot of that was driven by a former Red Hat lawyer who has meanwhile left. He even lobbied alongside some pro-patent companies to keep the EU software patent directive alive when we had already defeated it in July 2005.

It would be best if Red Hat could clearly dissociate itself from activities that contribute to the mess or help sustain it. Red Hat should act in accordance with the recent declarations of its CEO, which are so far only lip service.

It would be unfair to call Red Hat's business model -- they are the largest Linux company but only contribute about 10% of Linux development -- purely "parasitic", but describing it as "symbiotic" is a euphemism. At any rate, Red Hat may have to invest more in innovation and take out more patents, not only in absolute terms but also relative to sales.

7. Google's foray into new markets (Android, WebM)

Like many other patent holders, Google wants to have its cake and eat it: they love their own patents (especially in the search engine business) and don't like everybody else's. That's not realistic, and I think Google may increasingly realize it. Google should have been opposing all software patents for a long time, instead of telling others in the industry how important their search engine patents are for their core business and how proud they are of those.

What I really appreciated was a statement by Google's chief lawyer, David Drummond, that Google considers the use of patents against open source a bad idea and won't ever do it (quoted in this blog posting).

I'd also love to see a patent-unencumbered codec. However, WebM does raise the legitimate questions of patent clearance and indemnification -- especially after Bilski. But if there aren't satisfactory answers, then I tend to believe that MPEG LA isn't the biggest patent-related problem of all the ones that open source faces. Its licensing terms don't appear outrageous.

Android also faces patent issues. The Bilski ruling doesn't support HTC and other vendors of Android-based phones in their dealings with Apple.

Google's exclusionary use of patents in its core business (search engines) and its aforementioned support for the patent system may now come back to haunt Google as it forays into new markets in which the incumbents have already set up major patent thickets. I wouldn't be surprised to see Google rethink its stance on the desirability of patents in the coming years. In fact, I hope so.

8. Salesforce.com (Marc Benioff)

Some may call Salesforce.com founder and CEO Marc Benioff a "bigmouth" but he certainly does have guts. Instead of doing a licensing deal with Microsoft (which many others such as Amazon.com previously did), he decided to stand up and fight. The NoSoftwarePatents movement would love him to prevail in court.

But if he reads the Bilski ruling, he should pay particular attention to the court's reference to "technologies for conducting a business more efficiently". That's exactly the category of patents -- software-implemented business methods -- that represents the greatest threat to Salesforce.com. The Bilski patent application per se wasn't such a patent. The SCOTUS opinion, however, makes it clear that software-implemented business methods should be patentable in general.

9. The "captive court" theory

In the current debate over EU patent reform but also in other contexts, the "captive court" theory -- which came up in a SCOTUS ruling years ago -- was the most important element of the criticism that our movement voiced. I also mentioned it on multiple occasions, such as in my recent presentation at LinuxTag.

The theory is that courts that are patent-focused are essentially part of the patent system and more likely to favor the interests of patent holders as well as a broad scope of patentable subject matter, including software patents. The assumption is that people whose own career and influence is very much linked to the strength of the patent system are more favorable to such concepts as software patents. Even if it's not a matter of grabbing more power (to many of those people it probably isn't), everyone believes in the good that his profession can do and that's a kind of bias.

I still think the concern isn't wrong, but what can no longer be claimed now is that independent courts are willing to abolish software patents. Recently the German Bundesgerichtshof (Federal Court of Justice) declared software patents perfectly legal, in a ruling on an XML/HTML document generator. The BGH is the German equivalent of the SCOTUS, and the ruling is more specifically focused on software patents but has a Bilski-like overall effect.

10. IBM's open source credibility

They say that the first victim of war is the truth, and sometimes that's also the case in legal disputes. In this case, I don't think the truth is top of the list but there was one incident in the process that was really outrageous: IBM claimed that software patents liberated programmers and fueled the explosive growth of open source software development. That claim is unfathomable and insulting to the FOSS movement.

That amicus curiae brief was filed last year and previously written about by Glyn Moody, slashdot, and the software patent wiki.

On the occasion of the Bilski decision I felt it was necessary to remind people of it (and to inform those who weren't previously aware). IBM has a big credibility problem because it tries to have its cake and eat it: one the one hand, IBM claims to support open source and open standards, and on the other hand, IBM is the world's largest patent bully.

I don't deny that IBM has made important and useful contributions to open source (even to free software, although that is not IBM's ideology). However, if push comes to shove, its patents are dearer to IBM's heart than FOSS. IBM is also the primary sponsor of the bogus treatment schemes I listed in section 4. Through donations to various organizations such as the Linux Foundation, IBM has systematically silenced many critics of software patents (even Linus Torvalds welcomed one of IBM's bogus treatments for patents, which was very disappointing because he is genuinely against software patents).

As long as IBM doesn't decide on a fundamental departure from its patent-mongering ways, it will be an open hypocrite as opposed to a sincere open source advocate. The Bilski situation is another example of the credibility problem that IBM has more than any other company in the IT industry. It's high time it did something about it.

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European Union agenda concerning intellectual property rights

I participated in the KnowRi§ht conference in Vienna, Austria, where I was invited on ultrashort notice to give a speech on "Software Patents, Standards & Competition".

The big controversy at that conference clearly related to the future of the European patent (and patent court) system. I will report on that in a later post. Previously I'd like to summarize the outline of intellectual property rights matters on the EU agenda that a European Commission official gave at the conference.

Before I get into details of Dr. Jens Gaster's comments, I have to mention that he pointed out at the beginning of his speech that he was not acting as a spokesman of the institution that employs him (the European Commission) but instead in a personal capacity as a lecturer. It was an academic conference and Dr. Gaster continues to pursue an academic career in addition to his work for the Commission.

Dr. Gastner mentioned the fact that the EU's data retention directive had been considered "at least indirectly unconstitutional" by certain national courts of EU member states, which raises interesting questions.

Without mentioning Google Street View by name, he hinted that there may be a need for related legislation at the EU level to define everyone's rights.

He outlined various intellectual property issues with a competition dimension, describing the current phase as "the aftermath of the Microsoft case" and mentioning an impact assessment concerning pharmaceutical patents.

Concerning open standards, Dr. Gaster's take was that royalty-free standards are "fine" if all of the right holders agree.

The EU's broadbased Digital Agenda initiative was launched only recently, which is why Dr. Gaster could not offer a prediction as to what its outcome would be.

There might be a Commission initiative related to online content, possibly as part of the Commission's next working program. Rights management per se has been under examination by the Commission "for decades". According to Dr. Gaster, the Google Books case has "repercussions" throughout all of Europe, not only its mainly English-speaking countries.

Dr. Gaster was a driving force behind two Intellectual Property Rights Enforcement Directives (IPRED 1 and 2). The first one related to civil law and was passed. The second one, related to criminal law, fell through. Apparently the entry into force of the new European treaty, which gives the EU broader competencies and may lead to a revival of that initiative to harmonize rules for criminal prosecution of intellectual property rights violations.

With a view to ACTA (on which I commented recently, Dr. Gaster admitted that the initiative "has been criticized" and that "there was a lack of transparency". He believes there is now transparency "on the substance of the negotiations" (this probably meant to state that there would still not be complete transparency, such as a disclosure of the positions taken by different countries or procedural steps). Dr. Gaster claimed that ACTA would not go beyond IPRED 1, the existing EU directive on enforcement of IPRs under civil law.

On trademarks, the Commission has just launched a study concerning trademark law and its application by national trademark offices and the EU's own trademark authority, the Alicante, Spain-based OHIM.

Still in the trademark context, Dr. Gaster referred to the March 23 ruling by the European Court of Justice on Internet advertising links related to trademarked keywords (Google AdWords case). The highest-level French court, the Cour de Cassation, had referred this question to the ECJ. The result was that under the EU's E-Commerce Directive the search engine (in that particular case, Google) would be liable for trademark infringement while Internet access providers would benefit from a liability exemption.

After those other topics, Dr. Gaster then turned to what he called his "favorite subject": patent reform. As I said before, I will address this in my next post.