U.S. patent reform movement lacks strategic leadership, fails to leverage the Internet

Approximately ten years ago I became an anti-software patent activist. I ran a Europe-wide campaign in 17 languages (not the first one in Europe to advocate the abolition of software patents, but it was forceful enough for me to win the European Campaigner of the Year award from the Economist Group that went to Austrian-born Governor Schwarzenegger two years later). Meanwhile I've done my first couple of patent filings and intend to do more, and there's no way I would return to anti-patent campaigning (I was already done with that in 2006). I do, however, believe that some serious reform is needed in the U.S., and in Europe there's a risk of very negative side effects of what would be a good thing per se (a more unified and less expensive European patent system). In this post I want to share my observations on why the U.S. patent reform effort is apparently on the verge of defeat (though these things can sometimes change overnight in politics).

[Update on May 21] Sen. Leahy, whose commitment to reform is questionable, has taken the reform bill off the Senate Judiciary Committee agenda, at least for now. [/Update]

When my brothers in arms and I were fighting the patent establishment in Europe, Twitter didn't exist, nor did anyone outside of Harvard University know Facebook. We used mailing lists and Wikis, and to a lesser degree conventional discussion forums, for communication and coordination. Even with those limited tools, we were able to build serious pressure on EU policy-makers over the Internet. Many websites had anti-software-patent banners, some on an ongoing basis, others just during "web demos" ahead of key decisions.

There was a Europe-wide community of anti-software-patent activists. A few of its members were active on a daily basis, and others just from time to time. There was a grassroots network that was able to mobilize people very quickly and effectively to take action -- and a pretty significant number of them were small business owners, who obviously had less time available for this effort than students but were more important to politicians. I'm not aware of anything like that in the U.S., where there's no shortage of professionally-designed websites by lobby groups (all of which look more or less the same) -- in that regard, we had some shortcomings -- but there is no community of activists. Just a bunch of lobbying entities.

As long as it's using the very same tools as its opponents, the U.S. patent reform movement should not be surprised about the current stalemate. The pro-patent camp also has money to spend on web designers and lobbyists. It may have even more money available because the pro-patent camp has a more centralized structure. So what you get is a bunch of lobby group websites that all look very similar.

Ten years ago, large companies like Google were unwilling to lend any financial support to critics of the patent system. Nowadays, companies like Google, Facebook and Twitter, but even certain hardware makers such as Cisco, pour money into patent reform initiatives. But they won't be able to solve the problem by trying to outspend those who oppose meaningful reform. They won't win unless they realize that the most valuable currency in politics is not money: at the end of the day it's all about voters.

Many victims of patent trolling have indeed contacted U.S. politicians. And this has had an effect, which is noticeable when politicians speak at hearings. But you can get only so far with advocacy. There will be politicians, such as apparently certain Senate Democrats, who are beholden to the patent system and/or large corporations supporting it. There's no way you can convince them because they don't even want to understand what's wrong with the system. They are beholden to trial lawyers and certain corporations.

That's where more of the same won't help. It's where you have to become truly combative and play hardball in order to break the resistance. And to do that, you must fight both smart and hard. Your movement must also be effective as a pressure group to bring about serious change. Once you've figured out a politician will never be on your side, you must make him or her pay a political price for it. You want his party base to be so outraged that he or she will worry about this having a potential effect on the next primary or general election. Obviously, patent policy is not the kind of subject that can decide an election at any level on its own. But it can be one of various factors, and a very vocal group that can mobilize its supporters effectively will appear stronger than it may be in numbers.

The U.S. patent reform effort is too conventional, too predictable, too unimaginative. It's playing the game by rules that favor its opponents instead of changing the rules and bringing to bear its strength, which is that there's a far greater number of people who are unhappy with the state of the patent system than people who would actively support it.

The pressure group that started the European fight against software patents, the Foundation for a Free Information Infrastructure (FFII), sometimes stepped over the line, but overshooting a little bit occasionally is better than running an anemic, stolid campaign like the push for U.S. patent reform. The FFII attacked politicians who were firmly on the other side. It maintained Wiki pages on which it documented the pro-software-patent activities and statements by those politicians. It published and dissected statements, speeches, and letters those politicians sent to voters, just to explain to people what those politicians really said and did. This really had politicians concerned. Many politicians and their staffers kept track of what the FFII wrote about them, and sometimes even called up the FFII to request edits. Those politicians (and their staffers) were concerned that this information could influence the way that their peers, journalists, friends, neighbors, and especially their voters viewed them.

Apparently the U.S. patent reform movement knows very well who the obstructors of reform are. But it's not enough to put the blame on unnamed Senate Democrats. You have to name and shame them. You have to publish and dissect their statements and explain how those politicians harm Main Street businesses and consumers. You have to show how they act against the public interest only because it means more money in the trial lawyers' pockets. You have to expose them as the friends of patent trolls that they are. You won't convince them that way, but they may proceed with greater caution and, ideally, at some point give up their resistance to reform because they realize the price is too high.

In politics, the enemy of your enemy is your friend. In Europe, we had entrepreneurs as well as Attac activists. In the U.S., the patent reform movement should think about who the enemies of their enemies -- the Senate Democrats who oppose reform -- are. For example, many of the people who promote patent reform may be left of the political center, but the small business owners who are affected by patent trolling are usually not. In any event, if certain Senate Democrats oppose the public interest in patent reform, why doesn't the patent reform movement find a way to get, for example, Rush Limbaugh and his relatively new Young Conservatives website to talk about it? Or Glenn Beck? They reach large audiences. It may be possible to get them interested in a story of Senate Democrats acting against Main Street interests, especially if there is some well-researched material available on the Internet that exposes the friends of the trolls.

Obviously, the kinds of conventional lobby groups that are members of the Main Street Patents Coalition, such as the American Hotel & Lodging Association or the National Association of Federal Credit Unions, can't play the name-and-shame game. Even the Electronic Frontier Foundation, though some of its positions on IP are very extreme, wouldn't want to do that. Those kinds of groups need to maintain good relations with politicians all the time. And patent reform, while important, is only one of many things they're interested in, so they can't burn bridges.

That said, those traditional lobby groups could lend logistical and, if structured intelligently, also financial support to activists who are willing to spend time on this, whose exclusive political focus would be on patent reform and who would be willing to break the rules of D.C. lobbying in order to win.

Without financial support from the likes of Google, Cisco and Facebook, we broke pretty much all the rules of Brussels lobbying, and while we didn't achieve the abolition of software patents in Europe (they continue to be granted and enforced on a daily basis), we created a situation in which both camps agreed that it was best to have no new EU-wide law on software patentability. For the first and I believe still the only time in EU history, the European Parliament threw out a bill at a second reading, i.e., without any negotiations with the EU Council (the other legislative body in the EU). Against the rules, we made EU history.

I can't imagine that it wouldn't be possible to form such an activist community in the U.S., especially with the dynamics of today's social media. There are many people out there who would love to make a contribution to patent reform. There should be an online community that they can join, and which will organize online campaigns as well as local meetings. A place where they can exchange ideas and educate themselves.

The European anti-software patent movement consisted not only but to quite some extent of free and open source software activists. Many of them came across as overly ideological, but there were also academics and small business owners. Discussions were sometimes difficult, but usually fruitful. It should be possible to have similar dynamics in the U.S. as well.

All volunteer organizations face one fundamental problem: there will always be more people who want to offer their views than people who want to do the grunt work. But if a community is large enough, and if it has great leadership, then it can get a lot done.

Run-of-the-mill lobbying and grassroots activism can be a powerful combination. Sometimes grassroots activism is created organically, such as in Europe. But companies with a strategic interest in connection with a key policy issue can also find and (indirectly) support individuals who have the skills and the energy to create and organize such a movement.

If the U.S. patent reform movement had first-rate strategic leadership, then its leaders would have studied in detail how European anti-software patent activists achieved a historic rejection of a legislative proposal. They would also have tried to learn as much as possible from the recent legislative process in New Zealand. Of course, America is different. The topics are also different: in the U.S. the reform movement is too cowardly to speak out against software patents at the level of subject matter (admittedly this is harder to do in the U.S. than elsewhere, but the positions of the U.S. reform movement are way too soft to begin with and then get diluted in the political process, which is why nothing meaningful is achieved in the end). So the U.S. patent reform movement just uses trolls as a pretext for litigation reform, while the political processes in Europe and New Zealand were about patent-eligible subject matter. There's also a fundamental difference between the U.S. two-party system and the multi-party EU landscape. Still, if the masterminds of the U.S. patent reform initiative had been serious about winning, they would have done some thorough research on what worked and what didn't work elsewhere, in order to then determine which of those lessons learned abroad would also help them in their country. It's quite clear that they didn't do that. All they came up with was the very same kind of D.C. lobbying that the supporters of the current state of the patent system can also do (and possibly do even better). Apparently this isn't working.

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The FFII: a decayed pressure group promoting "open standards" for pay -- "staged drama" included

The FFII, a European pressure group originally known for its anti-patent work, has been a vocal participant in the European "open standards" debate for several years. In that context, it collaborates with the OpenForum Europe lobby group (which also has an FFII logo on its website and edited its own Wikipedia entry to mention, among other things, that partnership) and the Free Software Foundation Europe (FSFE).

This blog posting explains why policy-makers, company officials, journalists and honest activists should be extremely skeptical of the FFII's integrity, transparency, competence, and backing.

Especially in connection with "open standards", it turns out that the FFII's General Secretary and possibly also other FFII representatives are simply guns-for-hire willing to advocate positions they don't truly believe in -- provided someone like IBM pays them for it. If they can make money, even "staged drama" is something those people will consider. I have conclusive evidence for that attitude and will publish it further below.

The major issue is that the FFII and its representatives operate under the guise of a purely idealistic non-governmental organization.

The FFII used to be a central hub for the grassroots movement opposing the proposed EU directive on "computer-implemented inventions", which was rejected by the European Parliament in July 2005. At that time, the FFII had a pan-European volunteer network behind it (almost entirely recruited from the open source community) and received donations from many small businesses and individuals.

By now, the organization is in ruins. All that's left is a very small group of people that resulted from an adverse selection. But especially in the "open standards" context, they grossly mislead decision-makers and the media concerning their intentions and the organization's significance.

Defense against unbearable slur

For about six months, and especially over the last few weeks, I have been smeared baselessly and shamelessly by the FFII on Twitter and in discussion forums. Because of the past -- there was a time when the FFII and I had a common political goal -- I tried to avoid escalation. Even though today's FFII is less than a shadow of the FFII of 2004 or 2005, I was hesitant to publish the facts.

In light of what happened yesterday, I determined that I had no other choice but to make it clear just how untrustworthy today's FFII is.

Noted open source journalist Glyn Moody published an article on "Double standards on open standards", and the second paragraph mentions Karsten Gerloff of the FSF Europe. Below the article, I posted comments. I drew attention to the fact that the FSFE doesn't appear to advocate open standards and interoperability in some very important contexts, and it's conspicuous that the FSFE lobbies hand in hand for "open standards" with companies pursuing proprietary lock-in in their core businesses.

Karsten as well as the FSFE's counsel Carlo Piana didn't want to address the actual issue. I asked, repeatedly, two very clear and polite questions. I didn't get any answer, just diversion. So my concerns about the FSFE's position are well-founded. Other people saw this and supported my questions on that page as well as on Twitter.

The FFII's General Secretary then chimed in with baseless slur that's beneath contempt. The FFII's official Twitter account also kept smearing and "trolling" me all day. I decided that enough is enough, especially since I had given the FFII's board every opportunity to get the situation under control but they decided to support their General Secretary.

The FFII's General Secretary openly admitted that he can be -- and has been -- bought

Six months ago, when I started to take a strong interest in the Hercules open source mainframe emulator and related antitrust issues, I participated in a Hercules-related discussion on the FFII's founder and former president Hartmut Pilch's Facebook wall.

That wall was -- and as of now still is -- publicly visible. Any Facebook user, friend or not, can read it.

In that discussion, André Rebentisch, the FFII's General Secretary (and a member of its board), claimed that the Hercules situation was a "staged drama." That is completely wrong. The entire correspondence between TurboHercules (a French open source start-up founded by the creator of the Hercules project) and IBM is available, and there's nothing staged about it. IBM threatened the little company and the founder of the open source project with patents.

On March 28 at 10:56pm, Rebentisch then said:

"You know, I was equally sceptical about Open XML campaigning..."

This refers to the FFII's "NoOOXML" efforts to oppose ISO approval of the OOXML document format standard.

In the same comment, he then suggested he might take an interest in the TurboHercules matter in exchange for money:

"As it is a multi-billion Euro business there should fly sufficient cash around [sic]. I wouldn't be willing to step into the ring without."

So even though he considered the Hercules case a "staged drama", he looked at it as a money-making opportunity for himself.

The FFII later claimed he spoke only in his own name, not for the organization. But a serious non-profit advocacy group can't let one of its officials make statements like this on its founder's public Facebook wall. Just imagine the outcry if a Greenpeace leader said that media reports of pollution by one chemical company are a "staged drama", only to add that participation in such a staged drama, despite skepticism, was negotiable provided that another company was willing to pay.

A few days later, Rebentisch told me in a Facebook email message (I certify that this an accurate, verbatim translation of what he wrote in German):

"For instance, I ran -- together with Benjamin [he meant Benjamin Henrion, the president of the FFII] -- the Open XML campaign, which was about [opposing] ISO standardization of Open XML; there was a fair amount of money behind the effort."

So Rebentisch clearly admits that his work on "open standards" and against the Microsoft-backed OOXML standard was financially motivated. In connection with what he wrote on Facebook, it's clear that money helped overcome his skepticism concerning that cause. With that email he suggests the president of the FFII might have been available on the same basis.

There are strong indications that other leaders of the FFII indeed supported Rebentisch's gun-for-hire approach all along. I have heard from a fairly high-profile source that some money from IBM was contributed, directly or indirectly, to the FFII's "open standards" effort. And the next section discusses the organization's deliberate failure to comply with EU disclosure rules, which is additionally telling.

Consistent refusal to disclose amounts and sources of funding under the EU transparency initiative

In June 2008, the European Commission launched its long-awaited European Transparency Initiative aiming to provide the public with information on the funding of lobbying entities.

Ever since the "register of interest representatives" was started, the FFII has refused to sign up. Registration should take place annually. It's formally voluntary, but more than 3,000 lobbying entities have signed up, and the FFII continually engages in lobbying, so it could be reasonably expected to disclose its funding.

By contrast, I haven't done any lobbying work since the register was started. If I did, I would certainly sign up.

Earlier this month I made the FFII aware -- via email and Twitter - of its failure to do so. All that came back was pure hypocrisy and diversionary tactics. They claimed that they didn't have to register because they represent the interests of civil society (the previous section proved that's not really the case) and that the FFII was disappointed that the EU didn't agree on stronger transparency measures. That's incredible. If they don't think the initiative goes far enough, they should lead by example and at least comply with the rules as they stand (they could still advocate even stricter rules). The reason for the creation of the register is precisely that organizations like the FFII often misrepresent who really backs them and for what purposes; the register is meant to shed some light on that.

In my opinion, the most plausible explanation is that the FFII has something to hide.

This is particularly disgraceful when considering the FFII's long-standing smear of honorable Members of the European Parliament (MEPs) or even a director-general of the European Commission, suggesting they act as corporate stooges for money. The FFII also criticized on numerous occasions other lobby groups, claiming that those were beholden to big industry. I'm not exaggerating when saying that the FFII was similarly aggressive and vocal about those issues as some specialized "watchdog" organizations. But the FFII is like a self-proclaimed watchdog who doesn't want to be transparent himself...

It's pretty clear now that the FFII uses double standards not only in connection with "open standards" but also with transparency and disclosure.

The FFII doesn't have much official support from businesses

While actually being a small group of activists (mostly with an open source background), the FFII tries to position itself -- falsely -- as a representative of small and medium-sized enterprises (SMEs).

In reality, it doesn't have much official support from companies. As Rebentisch's statements show, there may be money from the likes of IBM secretly in play in some of their activities, but what's lacking is a significant, broadbased backing by businesses on an official basis.

Even in its heyday, the FFII wasn't really successful at getting support from companies. To give you an idea, the FFII launched in 2005 a campaign called "The Economic Majority Against Software Patents". Its objective was to demonstrate support from companies for its cause, and collectively, those companies were supposed to outweigh those supporting such patents.

The FFII received sign-ups from less than 2,000 companies with a collective revenue level of about 3.2 billion euros. An "economic majority"? No way. That number was less than 1% of the revenue level of only the most well-known supporters of software patents. In addition to unanimous support for those patents among the big players in the high-tech industry, there was also considerable support among SMEs.

The website also enabled companies to pledge financial support. Most companies didn't offer any money, and the few who did certainly didn't put their money where their mouth was. That effort was an abject failure.

By now, the FFII wouldn't even be able to demonstrate that kind of backing.

The latest example of the FFII totally overstating its support was the amicus curiae brief it filed with the US Supreme Court in the Bilski patent case. The FFII partnered with another NGO and then listed four people from the organization's network as "Global Software Professionals and Business Leaders" supporting the submission as individuals. That labeling was just ridiculous. It sounds like some really powerful, wildly successful people with a strong business background. But one of the four was Rebentisch, who to the best of my knowledge has never even had a serious job. Another one is a lawyer. The third guy runs a judo club and works as a freelance software developer (nothing wrong with that, but that's not a global business leader). The fourth person, finally, has a certain business background, more so than the three others combined, but still isn't a "global business leader" by any reasonable measure.

I don't know what the US Supreme Court thought of that overstatement. What I'm more concerned about is that the FFII tries the same make-believe approach in the EU all the time. They make submissions to the European Commission; they lobby the European Parliament all the time; and they try to influence national governments. All of that without officially representing any noteworthy part of the economy or the electorate.

And when they're not lobbying, they occasionally hang out on Twitter and online discussion boards to smear people who didn't make them a generous offer they couldn't refuse...

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