Ericsson

Ericsson is a Swedish telecommunications company that lobbies for software patents. They lobbied for software patents during the EU software patents directive.

Prejudice against free software

In 2020, Ericsson responded to the European Commission's call for public consultation regarding the evaluation of EU competition rules on horizontal agreements between companies. In that letter, Ericsson, stressed the need for "necessary and appropriate safeguards" that should cover free software, on the grounds that it could raise competition concerns, especially in the context of SDOs. However, they don't specify what these "safeguards" would be.

Ericsson wishes to direct the Commission’s attention to what it perceives as a significant gap in the Horizontal Guidelines, in that they do not cover the development of open source software ("OSS"). [...]

[...] OSS development lacks the typical safeguards associated with standardisation that takes place within SDOs. For example:

• The OSS development process is not necessarily open to all. OSS projects are typically governed by a private, closed foundation, whose members may decide whether or not to allow other participants to participate in the project.
• The OSS development process frequently lacks transparency. There is no secretariat of the type collaborative SDOs use, nor are there competitive peer review type voting selections on what code will be adopted. Instead, there is a code "maintainer" which decides what contributions will be accepted. This may lead to less vigorous competition on the technology/innovation level. Competition agencies have already started looking into these practices.
• Often, as for example with the Apache 2.0 license, the group developing the code collectively imposes a "non-assert" rule whereby anyone attempting to legitimately assert its patent rights on the code (be it a contributor or a non-contributor) loses any patent license rights to use that code. This is especially a problem where the founders developing the open source code enjoy market power, because it would effectively amount to a de-facto group boycott on other companies’ proprietary technology.

Without necessary and appropriate safeguards, OSS development is prone to potential infringements of Article 101 TFEU, probably even more so than "traditional" collaborative standards development because there are often only one or two "maintainers". Nevertheless, the Horizontal Guidelines currently offer no guidance that mitigate these potential competition concerns. Ericsson is of the view that this situation amounts to a significant gap, which the revised version of the Horizontal Guidelines should address. Ericsson would be pleased to provide additional information in relation to these practices, as well as suggestions how to regulate OSS development.

Ericsson submits that this issue could best be addressed by extending the scope of Section 7 of the Horizontal Guidelines to OSS development. Such an approach would also be in line with a recommendation included in a recent Science for Policy report by the Commission’s Joint Research Centre. This report explicitly recommended developing specific requirements for horizontal cooperation that apply to both SDOs and OSS.

Related pages on ESP Wiki

• Who lobbied for software patents

External links

• FFII's page about Ericsson