Cybercrime and Patents in Europe

Hairy1 writes: "The Council of Europe has been working on a Cyber Crime Treaty for some time. The final version is now available, and makes interesting reading." The submitter points out that treaty signers will be obligated to create legislation, as the UK already has, to force people to disclose passwords and encryption keys to the authorities. The U.S. may well sign this treaty - we've participated in the drafting process. On a slightly different note, people are up in arms because the European Patent Office has decided, apparently on its own, that software programs are patentable. Update: 11/09 15:23 GMT by M : A reader sent in this interesting bibliography of the treaty's history.

Amusing.

[MrFredBloggs]

The EU recently released a report encouraging business & individuals to encrypt data, as the Americans, and sympathetic governments (UK) can read it via Echelon. Now they are saying that once you`ve encrypted it, you have to give the passwords to...uh, the UK government!

This is an interesting development.

[dave-fu]

If software becomes a patentable, er... commodity, what implications will this have for free software? Will the length of legal disclaimers attached to code eventually be greater than the code itself?
And everyone fighting against encryption... it's a losing battle. "Criminals" don't exactly pay attention to "the law", and if they're not completely braindead and know that a given piece of encryption software is crippled by the fact that the government has the keys to the backdoor, don't you think that they'll either use something else or maybe just not incriminate themselves via any digital media? Law-abiding citizens are the only ones that lose here, unless you like the idea of every Jane Government sticking their nose in your business whether you've done anything wrong or not.
On the bright side, if software becomes patentable, maybe this will strengthen the notion of Code As Speech in the US courts? I sure hope that the US legislators in charge of ratifying this bill (are there any? what body would be in charge of this?) runs this by the RIAA and MPAA before they sign it.

how the fuck

[Anonymous Coward]

can you patent a string of numbers, or one very large number (depending in interpretation)?

An assembler or compiler is merely a filter for some text. This number when transfered to another processor type will generate complete different results, most likely garbage. Clearly the object code means different things to different processors, so they can't use binary.

Source code? Well that doesn't actually do anything other that represent algorithms, or thought process (pseudo code); which in turn represents free speech. You know, that thing the US used to have.

CoE - U.S. Law?

[1010011010]

I thought the U.S. had decided a few centuries ago to do without European legislation. I suppose I was wrong, as it appears that the U.S. Federal Government is now using the European federal legislative body to create law here in the U.S., via treaty.

Forced to disclose Passwords???

[A Commentor]

... treaty signers will be obligated to create legislation, as the UK already has, to force people to disclose passwords and encryption keys to the authorities. The U.S. may well sign this treaty - we've participated in the drafting process.

You would think that a law like this would violate everyone's '5th Amendment Rights':

nor shall be compelled in any criminal case to be a witness against himself... full text [cornell.edu].

Being force to disclose passwords to authorities, IMHO, would be equivalent to testifying agaist yourself...

Re:Software isn't patentable...

[Captn Pepe]

If you could get an patent on a method for doing something by using LEGO bricks, you could likewise get a patent on a method for doing the same thing using software.

What's the big deal?

This is more or less how software patents are supposed to work over here in the U.S., too. However, because the PTO has pathetically little software expertise, the result is that you can patent pretty much any stupid idea that is obvious to everyone else if your patent description ends with "...on a computer!"

The other big problem with this is that the patent system is explicitly not supposed to cover algorithms or mathematical formulae, because these are deemed fundamental properties of nature. However, patenting software is a surprisingly easy backdoor to patenting algorithms. E.g. RSA Data Security and the RSA patent which held back public key cryptography by a decade or more, and would have been worse if RSA had succeeded in convincing the PTO that their patent actually covers all forms of PK crypto.

Re:Mathematics

[morbid]

The "great mathematician" Roger Penrose already has patented some mathematics, a tesselation he discovered, IIRC. Not that anoyne else might have discovered it before, but when you're a respected public figure and have the wherewithall to get your stuff published, and people (who don't knwo any better) listen to you and accept what you say by default...

Very important things

[psicE]

First, remember that the Council of Europe is not the EU. It doesn't even have the same members. Just because this organisation passes a stupid law, doesn't mean the EU is evil, and doesn't mean the EU is contradicting itself.

Second, the Council of Europe didn't write this law, the US did; as such, I wouldn't expect many (if any) continental EU countries to sign it, especially considering it may contradict some of their EU responsibilities and they'd rather be part of the EU than pass this law.

Third, if they somehow did pass this law, we could always create a country in Antarctica.

Why not?

[autopr0n]

All patents are 'strings of numbers'. That is, all of them can be represented as data. (otherwise a patent database would be kind of difficult, eh?)

Genetic patents are patents on 'strings of numbers.'

Even most devices nowadays are designed using CAD type tools, meaning that they are simply strings of numbers as well. The fact that something can be represented numericaly dosn't really have any baring on anything.

Self Incrimination in Europe

[SomethingOrOther]

*Bangs head against the wall*
And what makes you think that every country in Europe has laws to protect self incrimination!

Example: The police "miranda warning" in the UK

"You do not have to say anything unless you wish do do so,

but it may harm your defence if you do not mention, when questioned, something which you later rely on in Court"

Then the police will start asking you questions and "putting you on the spot"
Now tell me America, Where is my right to silence and my right to not incriminate myself!

Use Best Practices

[Alpha Prime]

Best Practices says that if your password or keys are compromised, you need to change them as soon as possible.

Or we need to develop an "under duress" password capability that destroys the data if used.

Whoops, I gave you the wrong password. My bad.

Re:Forced to disclose Passwords???

[kadehje]

.. treaty signers will be obligated to create legislation, as the UK already has, to force people to disclose passwords and encryption keys to the authorities. The U.S. may well sign this treaty - we've participated in the drafting process.

You would think that a law like this would violate everyone's '5th Amendment Rights': nor shall be compelled in any criminal case to be a witness against himself... full text [cornell.edu].

Being force to disclose passwords to authorities, IMHO, would be equivalent to testifying agaist yourself...

Here's an even more disturbing part (from Article VI) of the Consitution that may mean that it doesn't, even theoretically, matter whether the government is forcing you to testify against yourself:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof;

and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

(emphasis added) Unless the U.S. Supreme Court has ruled that Constitutional amendments cannot be superceded by international treaties, by ratifying this treaty the U.S. Senate would in fact be directly taking away your rights. (If anyone does know of some precedent surrounding this article one way or the other, I'm sure it would be greatly appreciated by the Slashdot community) One wouldn't have a prayer of overturning this in the courts, since the judge would for all intents and purposes would not even be allowed to take constitutionality into account. Pretty scary, huh?

Similiarly, I fear that getting rid of provisions of the DMCA specified in the WIPO treaty won't be as easy as finding a reasonable judge and having him cast the "unconstitutional" spell on the law to make it go away. At least that treaty, however, allows nations to break it upon providing a certain amount of advance notice (1 year I believe), but that would involve going to the same people who ratified it in the first place...

This provision in the Constitution is why we Americans need to keep pressure on the President and Senate to ensure that treaties that take away Americans' civil liberties like this will not be tolerated by the American public. Unfortunately most of the American public doesn't care about these liberties and probably won't until they're all gone. We need to start teaching others why these treaties and domestic laws like SSSCA are so evil and we need to do it soon, otherwise we'll have no rights to try to defend anymore.

Re:Software isn't patentable...

[Savage-Rabbit]

You are right! It seems to me people have a problem distinguish between getting a patent:

1. for a method to implement an algorithm in software
   
2. and getting a patent that covers not only ones own implementation of the algorithm but also all other possible implementations.

The former is sensible. Why should one not be able to enjoy the fruits of developing a partickularly efficient method to code a certain algorithm? People get patents for implementing algorithms in hardware all the time. What is an FPU anyway other than a bunch of algorithms implemented in Hardware? So why not patents on methods to implement algorithms in software?

The latter however is stupid becasuse it means that anyone who develops a method to code the same algorithm one has patented no matter how different his methods design is from ones own will be violating ones patent.

It is silly to write off the concept of Software patents in general just because a few brain-donors want to use them to monopolize common well known algorithms.

Don't you love how this works?

[Eccles]

First, governments cooperate on creating a treaty with provisions that would never pass muster with the folks back home if they tried to pass it directly. Once signed, they then work to pass laws implementing the treaty. If people complain about the provisions, the lawmakers disclaim responsibility, saying they have to do this to comply with the treaty.

It HAS happened and It DOES happen, EXACTLY like this. Let's not get fooled again.

Re:Mathematics

[Jerf]

The EuroLinux article links to a French version of the text; an English version [epo.co.at] can be obtained by changing the "f" to an "e" (or following my link).

Here's the part on Mathematics:

These are a particular example of the principle that purely abstract or intellectual methods are not patentable. For example, a shortcut method of division would not be patentable but a calculating machine constructed to operate accordingly may well be patentable. A mathematical method for designing electrical filters is not patentable; nevertheless filters designed according to this method would not be excluded from patentability by Art. 52(2) and (3).

First, note that the Patent office, evidently not being staffed by mathematicians, believe that they have not rendered mathematics patentable. Or, in other words, explanation-free protests based on the statement that they have will only confuse them, and cause them to distrust the protesters. After all, "These are a particular example of the principle that purely abstract or intellectual methods are not patentable."

I see three problems with this:

1. "Purely abstract or intellectual methods" often are algorithms. For example, we tend to express the mathematical concept of "graph reachability" as the algorithm that tells us whether a given node is reachable from another. It can be defined other ways (including second order existential logic), but we tend to think of it algoritmically first, moreso for complicated properties.
   
   Therefore, despite protests from the Patent Office that mathematics are not patentable, damn near every discrete mathematics definition and algorithm is patentable, or close enough that a the prospect of fighting a patent would scare anybody.
   
2. "A mathematical method for designing electrical filters is not patentable; nevertheless filters designed according to this method would not be excluded from patentability by Art. 52(2) and (3)." Functions are only relevent in terms of the results. (Merely specifying a domain is rarely useful.) If one can create a mathematic concept, then proceed to creatively patent the (useful, for the Patent Office's amazingly low standard of "useful") results that can come from concept and associated functions, then the only useful part of the concept is effectively patented. Combine this with the next problem ->
   
3. An increasing amount of math is taking place on computers. For instance, the famouse and importent 4-Color problem was proven by a computer. This will only increase over time. Therefore, there may be no difference between the abstract math and the concrete implementation, which means there is no difference between patenting math and patenting an algorithm.

Remember that as you protest to the EU. They don't speak our language and, frankly, they don't know jack shit about math. And it shows. They honestly think that under these rules, math is still unpatentable.

(And frankly, I don't think we stand a chance in Hades of convincing them otherwise. The more ignorant you are, the more you think you know on a given topic, and I'd lay money these people honestly believe they know mathematics. Which means they will not listen to people like us.)