[AUUG-Talk]: MEDIA RELEASE: OSIA Limited & Linux Australia: AUS-FTA a Danger to the Australian Software Industry

Con Zymaris conz at cyber.com.au
Fri Aug 6 22:49:52 EST 2004

[Feel free to disseminate further]

For Immediate Release.

OSIA Limited & Linux Australia: AUS-FTA a Danger to the Australian
Software Industry
Australia -- 6th August, 2004

The entire Australian software development industry is at risk as a
result of the Intellectual Property legal framework required on adoption
of the AUS-FTA, Australia's Linux community and Open Source Industry
bodies said today in a joint statement. It will increasingly hamper
Australia's ability to efficiently compete in global markets. Much like
the introduction of a flawed patenting regime for pharmaceuticals,
adoption of a flawed patent regime for software is not in Australia's

"Firstly and most importantly, this is not an open source issue, nor
will it merely affect Australian-based open source developers," said
open source spokesperson and lawyer Brendan Scott. "The FTA may
introduce obstacles and legal traps which will have serious and harmful
effects on almost all Australian software developers. It's a
whole-of-industry issue for Australia."

Here's why:

1) The wording in the FTA suggests that there will be a harmonisation of 
   Australia's software patents law with the US laws. The US patent 
   system for software has been broadly condemned as flawed by many 
   industry observers, even by the former Patent and Trademark Office 
   director himself [1]

2) Any non-trivial piece of software embodies possibly thousands of 
   code processes, algorithms or software modules, any one of which 
   could fall foul of one or many US software patents. 

3) Most Australian developers have probably built products which 
   'infringe' on US software patents. Introducing a system which makes 
   it simpler for these patent holders to bring such legal hooks into 
   Australia is very damaging to the local industry.

4) Australian developers face hefty fines if they re-create software 
   processes unaware of the possibility that they may been patented. 
   Ignorance of such patents is no excuse. In future, Australian 
   developers may not be able to make any software without the fear of 
   paying ransom.

5) Most Australian software developers do not have the resources to 
   check their software code-bases against the tens of thousands of 
   software patents which may flood the market if Australia degrades its 
   stringent software patent laws. 

6) US patent law allows for the imposition of punitive damages. If 
   Australia adopted a similar law, local developers could be sued for 
   many times more than any actual 'damages' they may have 
   caused the patent holder, merely as a warning for others.

7) Obtaining software patents is expensive. Most Australian software 
   developers do not have the financial or organisational resources 
   to obtain them. Large software companies do have such resources
   The introduction of US-style software patenting will therefore be a 
   one-sided affair, and definitely not in the local industry's 

8) Most Australian software developers lack the resources to go
   toe-to-toe with large firms on any IP legal issues. This includes
   situations where the Australian developer is the one which owns a

9) Most software patents are owned by huge ICT firms, which storehouse 
   them in legal battle chests, to be invoked when necessary to do an 
   opponent serious damage or for legal leverage in deal negotiation. 
   They are not used to 'extend the art and science' of technology.

10) Many or most software patents in the US have been granted on 
   processes or algorithms which are exceptionally vague or even worse, 
   quite obvious to most competent software development practitioners. 
   They should not have been granted in the first place, as they are 
   not 'novel'. By degrading Australia's patent system to match the US 
   approach we will hadicapping our local developers needlessly.

"We've covered just some of the dangers to the local industry embodied
by the introduction of US-style system," continued Scott.  "There are a
similar number of serious issues which will arise with the introduction
of DMCA-style legislation, also mandated by the FTA. It suffices to say
that anything which stops academic research into security and which also
stops any endeavour towards software interoperability engineering is a 
serious problem for R & D in this country."

"The FTA puts anti-competitive tools into the hands of large players,
without any real accountability," said Pia Smith, president of Linux
Australia. "It grants a monopoly over technology, innovation,
competition, and even the research sector. The DMCA in the US has been
used to threaten competitors, stifle innovation, halt research, gaol
developers, and systematically remove the rights of consumers. Allowing
the same to happen here, especially under an FTA where we lose the
ability to fix the issues locally is naive, and dangerous to Australia."

Linux Australia and OSIA support the proposals made by David Vaile, of
the UNSW's Baker & McKenzie Cyberspace Law and Policy Centre, as a
starting point to solving some of the problems in the FTA:

 1. Tighten the criteria for software and
   'business process' patent applications.

 2. Establish a public interest litigation fund
    to enable Open Source software developers,
    integrators or users to respond to anti-competitive
    and tactical patent infringement claims,
    if they would otherwise be unable to do so.

 3. Official support for global 'prior art' research
    projects to assist research of the viability
    of such claims.

 4. change IPaustralia.gov.au page to make lodged
    patents easier to track, so that developers can
    protect themselves from bogus patents.

 5. Limit the implementation of controversial DMCA-style*
    laws, to the extent they'd inhibit development of open,
    compatible tools for common file formats and networks.

 6. Introduce US 'Fair Use' amendments to Copyright Act.
    (give us the good pro-consumer parts of US law too!)

"We also call upon all firms which purport to represent the interests of 
the Australian ICT industry and local developers, such as the AIIA, 
Software Engineering Australia, the ACS, the Internet Industry 
Association and Software Queensland, to make public statements about 
this topic. Now is the time to make a stand to keep local software 
development unencumbered and efficient, so we have a chance to compete 
in the global marketplace," concluded Scott.


 [1] http://zdnet.com.com/2100-1107-5298785.html

Unintended effects of the DMCA


- - -
About Linux Australia

Linux Australia is a national organisation that exists to support and  
promote the Linux and Open Source community in Australia.


About Open Source Industry Australia Limited

OSIA Limited is the industry body for Open Source within Australia. We
exist to further the cause of Free and Open Source software (FOSS) in
Australia and to help our members to improve their business success in
this growing sector of the global Information and Communication
Technology (ICT) market.


Spokesperson/Contact: Brendan Scott
Phone: 0414 339 227
Email: media at osia.net.au

- - - END - - -

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Cybersource: Australia's Leading Linux and Open Source Solutions Company 
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