The best tweet ever on the EU Copyright Directive sums up the bloc's miserable failure and misguided approach

If I'm not mistaken, this is the first time--in almost ten years and after more than 2,000 posts--that a tweet gives rise to a FOSS Patents article. This is the one, and I'll comment below:

It is also noteworthy that the EU Commission uses a 100% US platform to call the EU public "mob". No European firms for them to choose?

— Dr. Roy Schestowitz (罗伊) (@schestowitz) February 19, 2019

This is about the European Commission's offensive Medium post. Some IP radicals in the internal market commissioner's cabinet or the IP unit of the Commission's services had flown off the handle and referred to critics of a copyright bill, including (among others) numerous law professors and the inventor of the World Wide Web, as "the mob."

Prior to Dr. Schestowitz, no one had actually noticed the fact that the European Commission was using an American Internet platform--Medium--for this insult because it's so normal in a way, though it's an insanity if you actually think about it. It relates to why the whole mess that is the EU Copyright Directive is on the agenda, and to what's bound to go wrong in the future, especially with that bill being enacted into law.

The insanity here is that Medium is exactly an example of the blessings that user-generated content brings and that the EU Copyright Directive's Article 13 is designed to hamper.

As I explained yesterday, the EU institutions are now about to adopt a fake compromise. The companies opposing the directive have no one to blame but themselves because they didn't leverage those genuine grassroots activities out there in the right way. They failed to persuade politicians from the center to the right, and didn't even convince some left-wingers (even the German Greens). Blowing things out of proportion with terms like "censorship" gets you nowhere. Also, while I'm really happy about and impressed by the success of the savetheinternet.info online petition, it doesn't make sense to claim that the directive threatens the Internet in general. We're talking about specific issues and should define them precisely.

Sometimes there's a pretty clear left-right divide in European IP-related legislative processes. Ultimately the European Parliament near-unanimously rejected the software patents bill in 2005, but that was because of a procedural agreement. When it came to substance, it was basically a mix of left-wingers, euroskeptics (not as strong back then as they are now, but always my friends), and a progressive minority among center-right parties (such as Finnish MEP Piia-Noora Kauppi, former Polish prime minister Jerzy Buzek and Czech MEP Jaroslav Zverina) who sided with critics of the proposal.

With the proposed Directive on Copyright in the Digital Single Market, the problem is that politicians left and right have lost faith in market forces. They see the EU's failure in the digital-platform economy and believe overregulation is the right reponse. (With cars increasingly being digital devices on wheels, that failure may be Europe's industrial demise within a couple of decades.)

That digital failure is again illustrated by the fact that the European Commission has to take to an American digital platform to offend millions of European citizens just because they're dissidents in the copyright context.

What those politicians haven't understood yet (and there isn't much time remaining to explain it to them) is that overregulation won't solve the problem. It will exacerbate it because it will make it even harder for European companies to gain a foothold in that market. It will motivate entrepreneurial young Europeans to start their companies, or take jobs with startups, in the United States rather than in Europe.

Investment in digital-platform startups will be discouraged, and the carveout for companies younger than three, smaller than 10 million euros in annual revenues and with fewer than five million monthly users won't help in the slightest as I explained in my previous post.

Not only the European Commission but also the other institutions (and the national governments, which are represented in the Council) should ask themselves why the EU can't even use a European digital platform to insult voters and taxpayers. And they should realize that a focus on how to win, not an indulgence in envy, is the solution.

The European Union will only make things worse if it employs the methods of the old Soviet Union. You can't compete with the United States by restricting freedom. What has made China so successful? Freedom in the sense of capitalism (human rights are another topic).

To be clear, it's not just about platform companies. Europe's economy and society will suffer in general if European user-generated content will be less abundant than American or Asian user-generated content. User-generated content is used in so many sectors of the economy, and--which is extremely important--in education. And even in politics, as the Commission's post demonstrated in a negative sense.

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Shame on the European Patent Office for its legal threats against TechRights author Dr. Roy Schestowitz

The European Patent Office is the last dictatorship on Central European soil. Local police cannot allowed to enter the EPO's facilities without an invitation from the president. National court rulings cannot be enforced; compliance is voluntary. Employees and visitors are subjected to covert surveillance. And if employees are fired (or "suspended"), which just happened to several staff representative, they won't get their day in court for about ten years.

The EPO's leaders have a rather selective attitude toward the law. When it's about their wrongdoings, they want their organization to be a lawless, autocratic island that disrespects human rights. But when the rules of the world around the EPO come in handy, the leadership of the EPO tries to leverage them against those who dare to criticize it.

A Munich newspaper reported last week that the EPO even tried to get a staff union lawyer disbarred. And today World IP Review has reported on legal threats by the EPO against Dr. Roy Schestowitz, author of the TechRights blog (temporarily the link was broken, but at the time of publication, it worked). In July it became known that the EPO blocked access from its local network (which examiners use for prior art searches) to TechRights. I strongly criticized that move, and found it futfile. But the EPO leadership stops at nothing, and is now trying to silence its fiercest and most frequent critic in the entire blogosphere.

Dr. Schestowitz had mentioned this on Twitter, but he had not revealed any specifics before the WIPR article. You can find his commentary on the WIPR story--and information that purports to indicate a publisher has also been threatened--here.

TechRights has always been an opinionated, rather combative blog. Still, with almost 20,000 blog posts, Dr. Schestowitz had not received a legal letter before an EPO lawyer sent him one.

Many thousands of TechRights posts took aim at Microsoft, and typically not in diplomatic terms. But Microsoft, which has a huge and sophisticated legal department, never thought it prudent to send a cease-and-desist letter. Nor did any other company that was criticized, and there were many (though Microsoft used to bear the brunt of TechRights' criticism).

The EPO leadership must be very afraid of TechRights. It should be. Dr. Schestowitz is doing a first-rate job at keeping track of developments at and around the EPO. He doesn't miss a beat. I don't mean to say that I would always use the same terminology, but the EPO should respect the freedom of speech. If the EPO leadership wants more positive press coverage (and not just from its "media partners" like Les Échos), then it should tackle the underlying issues.

If the EPO ever sued Dr. Schestowitz, I would contribute money and lend an endorsement to a crowdfunding effort to finance his defense.

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EPO labor dispute getting completely out of hand: three union leaders suspended, others pressured

The conflict between the leadership and staff representatives of the European Patent Office appears to be totally out of control now. The latest information would be unthinkable anywhere in the civilized world, but the European Patent Organization simply isn't part of the civilized world around it.

On Monday, the Staff Union of the European Patent Office (SUEPO) published a flyer about what allegedly happened in The Hague (the EPO's #2 seat in terms of the number of employees) on Friday (this post continues below the document):

15 11 16 SUEPO Flyer by Florian Mueller

Let me copy the three key allegations here--they just refer to two of the staff representatives by their first names, with "Jesus" being a typical Spanish first name (with an accent over the "u") and "Laurent" being a common French first name:

• Jesus was picked up from his office by President's emissaries. Upon return, he was visibly shaken and appeared to have suffered a nervous breakdown. Medical help was called, and he had to be wheeled out of the office in bad shape. He appears to have been subjected to severe, concerted and wilful pressure, especially intended to harm and destabilise.

• Laurent got or was scheduled to get a similar treatment. Noticeably distressed, he had to rush for medical help externally.

• The other members of the Staff Committee who witnessed the event were also deeply perturbed.

The last time I read stories like that they referred to Romania under its communist dictatorship. They also picked up people who returned in a perturbed state, though they also made them disappear quite often.

Last night I got a message--from a reliable source I won't disclose but it's nowhere near Munich--that three leaders of SUEPO's Munich chapter have been "suspended," among them Elizabeth Hardon, who recently wrote a letter complaining about the way she was treated. Also, the EPO had threatened legal action against her.

According to what I read on Twitter, TechRights blogger Dr. Roy Schestowitz (whose blog cannot be accessed from the EPO network without the use of software work-arounds for this kind of censorship) has also received legal threats from the EPO leadership. No details have become known yet.

I have not been threatened so far, but I am deeply sorry for those who have been. Rumor has it that Mrs. Hardon and Dr. Schestowitz are not the only ones.

It appears that Mrs. Hardon has decided to rather be proud and "suspended" than bow to lawlessness, corruption, and evil. I am so sorry for her and the other suspended union leaders, and I truly admire them for their steadfastness.

Dr. Schestowitz also deserves the greatest respect for his principled stance. Despite all the bullying, he continues to call out the EPO leadership on its actions and decisions. Most recently, TechRights has started to talk about the unbelievable, extraordinary career path of Mrs. Elodie Bergot. It appears that the juiciest part of the story is actually not even on that blog but hidden somewhere between the lines of that post or the forthcoming one (Part II) on the same topic.

TechRights is a blog I recommend all those concerned about the EPO's corrupt ways to read regularly. I will write about EPO issues from time to time, but not nearly as often. Also, I wish to highlight the IP Kat blog's announcement of forthcoming reports on staff suspensions and other EPO issues for this week.

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European Patent Office intentionally treats patent applicants and staff unfairly: leaked documents

While I'm currently taking a break from patent (not copyright) blogging, there's a few EPO-related issues I quickly wanted to draw attention to (and would comment on in more detail if I had time).

Dr. Roy Schestowitz, who has been authoring the TechRights blog for nine years, obtained (after I encouraged him to do so) a copy of an internal document of the European Patent Office that stands as incontrovertible evidence of the EPO's institutionalized unfairness. Companies filing large numbers of patent applications receive preferential treatment including highly questionable package deals along the lines of "drop these 500 patent applications and in exchange we'll grant 1,000 other weak applications of yours in short order".

Article 7 of the Universal Declaration of Human Rights states the following: "All are equal before the law and are entitled without any discrimination to equal protection of the law." But the EPO doesn't believe in human rights and is, as Dr. Schestowitz accurately notes, run like a private, profit-maximizing enterprise as opposed to an honorable institution properly applying the law. I've previously likened the EPO to FIFA, but with the latest evidence I almost feel like I have to ask FIFA for an apology for this comparison, given that different standards must be applied to a sports body vs. a government institution in charge of a key area of commercial law. FIFA doesn't rig soccer matches, at least not the extent the EPO's leadership compromises the patent granting process.

The general press should take much more of an interest in the EPO's corruption. Yesterday I was pleased to see that Heise online, Germany's leading IT news site, has written about this after reading the TechRights story.

I also wanted to point to some new developments in connection with the EPO leadership's repressive actions against staff union leaders. The following letter by SUEPO's (Staff Union of the European Patent Office) Munich chair, Elizabeth Hardon, to the chairman of the Administrative Council (the politburo) of the European Patent Organization speaks for itself:

15-10-08 Letter Re. EPO Elizabeth Hardon by Florian Mueller

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Leadership of European Patent Office blocks examiners' access to directory of potential prior art

Somehow the leadership of the European Patent Office manages to demonstrate at least once per month in one or more contexts that it is far more concerned about public debate and the consequences it could have on some people's posts there, and far more interested in self-aggrandizement and self-service, than it is focused on the organization's number one job, which is not primarily to grant patents but actually to prevent bad patents from being granted. If its primary task were (as the EPO leadership misrepresents its responsibility all the time) to grant patents, the organization could be 10% of its current size and would still be overstaffed because it would merely have to publish substantively-unexamined filings, check on simple formalities, and collect fees.

What the EPO's leadership also demonstrates month after month is its utter contempt for fundamental human and, especially, workers' rights. Politicians are increasingly aware of this.

No European (EU and non-EU; the EPO is not an EU body) institution has ever been in such a terrible crisis as the EPO. The use of hidden cameras and keyloggers (even in areas accessible to visitors) was approved by the organization's data protection officer for no reason that anyone could seriously consider sufficient justification for such a measure. The alleged wrongdoings had nothing to do with decisions on granting, rejecting, upholding or revoking patents. There was no physical threat to anybody at the EPO. The organization's leadership just couldn't accept that a member of a board of appeal distributed information concerning an EPO vice president who is innocent until proven guilty but failed to convince a court in his native Croatia that a journalist should not be allowed make allegations of the kind that would be more than enough for an honorable and reputable organization to replace him.

The latest from the EPO is that its staff can no longer access the TechRights blog, which is written by a free and open source software activist from the UK, Dr. Roy Schestowitz. Here's a letter, dated July 10, that the Central Staff Committee of the EPO wrote to complain about this act of censorship (this post continues below the document):

15-07-10 EPO Central Staff Committee Re. TechRights by Florian Mueller

TechRights had also heard about this issue from internal sources ("European Censorship: Tyrants of the EPO Blacklist Techrights, Web Site Not Accessible Office-Wide"). TechRights has been very critical of the EPO's president and the aforementioned vice president, as well as the overall leadership, for a long time. It's not known whether the two posts on the EPO that TechRights published shortly before the censorship played a role:

• July 10: EPO Appointments: Standards of a Third World Country

• July 3: Amid Controversy, Political Scrutiny and Increased Media Pressure Željko Topić and Benoît Battistelli Allegedly Cancel Today’s Trip to Zagreb (Croatia) Where Topić Faces Many Criminal Charges

I, too, have had my disagreements with TechRights, and often felt treated unfairly and subjected to conspiracy theories. Its political positions are clearly to the left of mine. And again, Mr. Topić is innocent until proven guilty, and while I linked to TechRights stories on his legal matters in Croatia, I have no opinion on them other than what I've said before: the Administrative Council of the EPO is not doing its job because otherwise it would replace him just for reputational reasons rather than take the risk that there ultimately turns out to have been some fire behind all the smoke. Unfortunately, the Administrative Council is in cahoots with the EPO president, who in turn is in cahoots with his closest circle of friends and trusted sidekicks.

Here's by far and away the biggest problem that I have with the EPO's decision to block its employees' access to TechRights:

Patent offices should not block examiners' access to anything because prior art can potentially be found anywhere, either directly or indirectly.

It's less likely in the case of TechRights that one would find prior art directly on that site because it's not a source code repository or technical documentation site.

However, it's anything but unlikely that someone researching information about technical innovation relating to Linux and numerous other free and open-source technologies could find useful links there. TechRights has been around for almost a decade (almost twice as long as this blog) and opinionated posts on policy issues are not the only thing it publishes. TechRights very frequently (mostly on a daily basis) provides link collections such as this one, which contain numerous technical news from the free and open source software community. It doesn't own those links exclusively, so theoretically examiners could discover the same information elsewhere, but as a matter of principle, examiners should have all tools, repositories and portals at their disposal when they go on a search for prior art.

A patent office that is serious about patent quality should not take even the slightest risk that an examiner may, due to the blocking of a website, fail to identify prior art that could prevent a bad patent from issuing.

It also--another important consideration--shouldn't prevent examiners from educating themselves about the state of the public debate over patent policy. TechRights follows European and U.S. patent policy. I'm not saying that it provides exclusive insights, nor would I vouch for its accuracy in all respects, but there can be no doubt that it does provide, and I mean this nonjudgmentally, a unique perspective on things.

EPO staff can still read TechRights at home or on mobile devices, a fact that makes this attempt at censorship absolutely ridiculous. But it should also have access from its desktop computers at work just in case anyone finds links to prior art there.

The EPO leadership has just scored an own goal: by blocking access to TechRights, it has now raised the profile of that blog.

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