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diff --git a/talermerchantdemos/blog/articles/en/danger-of-software-patents.html b/talermerchantdemos/blog/articles/en/danger-of-software-patents.html new file mode 100644 index 0000000..8276c2b --- /dev/null +++ b/talermerchantdemos/blog/articles/en/danger-of-software-patents.html @@ -0,0 +1,1472 @@ +<!--#include virtual="/server/header.html" --> +<!-- Parent-Version: 1.77 --> +<title>The Danger of Software Patents +- GNU Project - Free Software Foundation</title> +<!--#include virtual="/philosophy/po/danger-of-software-patents.translist" --> +<!--#include virtual="/server/banner.html" --> + +<h2>The Danger of Software Patents</h2> +<p>by <a href="http://www.stallman.org/">Richard Stallman</a></p> + +<p>This is the transcript of a talk presented by Richard M. Stallman +on 8 October 2009 at Victoria University of Wellington.</p> + +<dl> +<dt>SF:</dt> +<dd><p>My name is Susy Frankel and on behalf of myself and Meredith +Kolsky Lewis, I'd like to welcome you to this seminar hosted by the +New Zealand Centre for International Economic Law. Brenda Chawner, +who is part of the Victoria University School of Information +Management, rather than the Centre I just named being part of the Law +Faculty, is really responsible for bringing Richard Stallman back to +New Zealand and hosting his tour of New Zealand, including this stop +here in Wellington tonight. She's unfortunately unable to be with us +at this moment because she's doing what we do in universities which is +teach.</p> + +<p>So it's my pleasure to welcome you to the lecture “The Danger +of Software Patents”. Richard Stallman has a suite of lectures +that he offers, and after discussion with Brenda, I chose this topic +precisely because for the first real time in New Zealand history, we +have a somewhat prolonged, but important, debate about patent law +reform, and many of you in the room are responsible for the debate +relating to software patents. So it seemed very topical, very timely. +So thank you, Richard, for making that offer.</p> + +<p>Richard Stallman needs little introduction. Nonetheless, for some +of you who have not heard of him previously, he has launched the +development of the GNU operating system. I had never heard GNU said +before, and I went online to YouTube (where would we be be without +YouTube)…</p></dd> + +<dt>RMS:</dt> +<dd>Oh, you shouldn't recommend YouTube, because they distribute in a +patented video format.</dd> + +<dt>SF:</dt> +<dd>Good point. I only recommend it for the point that I thought do +you say G N U or GNU?</dd> + +<dt>RMS:</dt> +<dd>Wikipedia says that. [The answer is, pronounce it as a one +syllable, with a hard G.]</dd> + +<dt>SF:</dt> +<dd>Yes, but live I heard you say it on YouTube. But nonetheless, the +important point is that it's not proprietorial. But the most +interesting point is that Richard has received many honors for his +work. My favorite, and therefore the one that I'm going to mention, +is the Takeda Award for Social and Economic Betterment, and I imagine +we're going to hear a lot of that tonight, so join me in welcoming +Richard.</dd> + +<dt>RMS:</dt> +<dd><p>First of all, I'd like to mention one of the reasons why I'm +drinking this [a can or bottle of a cola which is not coke] is there's +a worldwide boycott of Coca-Cola Company for murdering union +organizers in Colombia. Look at the +site <a href="http://killercoke.org">killercoke.org</a>. And they're +not talking about the effects of drinking the product—after all, +the same might be true of many other products—it's murder. So +before you buy any drink product, look at the fine print and see if +it's made by Coca-Cola Company.</p> + +<p>I'm most known for starting the free software movement and leading +development of the GNU operating system—although most of the +people who use the system mistakenly believe it's Linux and think it +was started by somebody else a decade later. But I'm not going to be +speaking about any of that today. I'm here to talk about a legal +danger to all software developers, distributors, and users: the danger +of patents—on computational ideas, computational techniques, an +idea for something you can do on a computer.</p> + +<p>Now, to understand this issue, the first thing you need to realize +is that patent law has nothing to do with copyright law—they're +totally different. Whatever you learn about one of them, you can be +sure it doesn't apply to the other.</p> + +<p>So, for example, any time a person makes a statement about +“intellectual property,” that's spreading confusion, +because it's lumping together not only these two laws but also at +least a dozen others. They're all different, and the result is any +statement which purports to be about “intellectual +property” is pure confusion—either the person making the +statement is confused, or the person is trying to confuse others. But +either way, whether it's accidental or malicious, it's confusion.</p> + +<p>Protect yourself from this confusion by rejecting any statement +which makes use of that term. The only way to make thoughtful +comments and think clear thoughts about any one of these laws is to +distinguish it first from all the others, and talk or think about one +particular law, so that we can understand what it actually does and +then form conclusions about it. So I'll be talking about patent law, +and what happens in those countries which have allowed patent law to +restrict software.</p> + +<p>So, what does a patent do? A patent is an explicit, +government-issued monopoly on using a certain idea. In the patent +there's a part called the claims, which describe exactly what you're +not allowed to do (although they're written in a way you probably +can't understand). It's a struggle to figure out what those +prohibitions actually mean, and they may go on for many pages of fine +print.</p> + +<p>So the patent typically lasts for 20 years, which is a fairly long +time in our field. Twenty years ago there was no World Wide +Web—a tremendous amount of the use of computers goes on in an +area which wasn't even possible to propose 20 years ago. So of course +everything that people do on it is something that's new since 20 years +ago—at least in some aspect it is new. So if patents had been +applied for we'd be prohibited from doing all of it, and we may be +prohibited from doing all of it in countries that have been foolish +enough to have such a policy.</p> + +<p>Most of the time, when people describe the function of the patent +system, they have a vested interest in the system. They may be patent +lawyers, or they may work in the Patent Office, or they may be in the +patent office of a megacorporation, so they want you to like the +system.</p> + +<p>The <cite>Economist</cite> once referred to the patent system as +“a time-consuming lottery.” If you've ever seen publicity +for a lottery, you understand how it works: they dwell on the very +unlikely probability of winning, and they don't talk about the +overwhelming likelihood of losing. In this way, they intentionally +and systematically present a biased picture of what's likely to happen +to you, without actually lying about any particular fact.</p> + +<p>It's the same way for the publicity for the patent system: they +talk about what it's like to walk down the street with a patent in +your pocket—or first of all, what it's like to get a patent, +then what it's like to have a patent in your pocket, and every so +often you can pull it out and point it at somebody and say, +“Give me your money.”</p> + +<p>To compensate for their bias, I'm going to describe it from the +other side, the victim side—what it's like for people who want +to develop or distribute or run software. You have to worry that any +day someone might walk up to you and point a patent at you and say, +“Give me your money.”</p> + +<p>If you want to develop software in a country that allows software +patents, and you want to work with patent law, what will you have to +do?</p> + +<p>You could try to make a list of all the ideas that one might be +able to find in the program that you're about to write, aside from the +fact that you don't know that when you start writing the program. +[But] even after you finish writing the program you wouldn't be able +to make such a list.</p> + +<p>The reason is… in the process you conceived of it in one +particular way—you've got a mental structure to apply to your +design. And because of that, it will block you from seeing other +structures that somebody might use to understand the same +program—because you're not coming to it fresh; you already +designed it with one structure in mind. Someone else who sees it for +the first time might see a different structure, which involves +different ideas, and it would be hard for you to see what those other +ideas are. But nonetheless they're implemented in your program, and +those patents could prohibit your program, if those ideas are +patented.</p> + +<p>For instance, suppose there were graphical-idea patents and you +wanted to draw a square. Well, you would realize that if there was a +patent on a bottom edge, it would prohibit your square. You could put +“bottom edge” on the list of all ideas implemented in your +drawing. But you might not realize that somebody else with a patent +on bottom corners could sue you easily also, because he could take +your drawing and turn it by 45 degrees. And now your square is like +this, and it has a bottom corner.</p> + +<p>So you couldn't make a list of all the ideas which, if patented, +could prohibit your program.</p> + +<p>What you might try to do is find out all the ideas that are +patented that might be in your program. Now you can't do that +actually, because patent applications are kept secret for at least +eighteen months; and the result is the Patent Office could be +considering now whether to issue a patent, and they won't tell you. +And this is not just an academic, theoretical possibility.</p> + +<p>For instance, in 1984 the Compress program was written, a program +for compressing files using the <abbr title="Lempel-Ziv-Welch"> +LZW</abbr> data compression algorithm, and at that time there was +no patent on that algorithm for compressing files. The author got the +algorithm from an article in a journal. That was when we thought that +the purpose of computer science journals was to publish algorithms so +people could use them.</p> + +<p>He wrote this program, he released it, and in 1985 a patent was +issued on that algorithm. But the patent holder was cunning and +didn't immediately go around telling people to stop using it. The +patent holder figured, “Let's let everybody dig their grave +deeper.” A few years later they started threatening people; it +became clear we couldn't use Compress, so I asked for people to +suggest other algorithms we could use for compressing files.</p> + +<p>And somebody wrote and said, “I developed another data compression +algorithm that works better, I've written a program, I'd like to give +it to you.” So we got ready to release it, and a week before it was +ready to be released, I read in the <cite>New York Times</cite> weekly +patent column, which I rarely saw—it's a couple of times a year +I might see it—but just by luck I saw that someone had gotten a +patent for “inventing a new method of compressing data.” +And so I said we had better look at this, and sure enough it covered +the program we were about to release. But it could have been worse: +the patent could have been issued a year later, or two years later, or +three years later, or five years later.</p> + +<p>Anyway, someone else came up with another, even better compression +algorithm, which was used in the program gzip, and just about +everybody who wanted to compress files switched to gzip, so +it sounds like a happy ending. But you'll hear more later. It's not +entirely so happy.</p> + +<p>So, you can't find out about the patents that are being considered +even though they may prohibit your work once they come out, but you +can find out about the already issued patents. They're all published +by the Patent Office. The problem is you can't read them all, because +there are too many of them.</p> + +<p>In the US I believe there are hundreds of thousands of +software patents; keeping track of them would be a tremendous job. So +you're going to have to search for relevant patents. And you'll find +a lot of relevant patents, but you won't necessarily find them +all.</p> + +<p>For instance, in the 80s and 90s, there was a patent on +“natural order recalculation” in spreadsheets. Somebody +once asked me for a copy of it, so I looked in our computer file which +lists the patent numbers. And then I pulled out the drawer to get the +paper copy of this patent and xeroxed it and sent it to him. And when +he got it, he said, “I think you sent me the wrong patent. This +is something about compilers.” So I thought maybe our file has +the wrong number in it. I looked in it again, and sure enough it said, +“A method for compiling formulas into object code.” So I +started to read it to see if it was indeed the wrong patent. I read +the claims, and sure enough it was the natural order recalculation +patent, but it didn't use those terms. It didn't use the term +“spreadsheet”. In fact, what the patent prohibited was +dozens of different ways of implementing topological sort—all +the ways they could think of. But I don't think it used the term +“topological sort”.</p> + +<p>So if you were writing a spreadsheet and you tried to find relevant +patents by searching, you might have found a lot of patents. But you +wouldn't have found this one until you told somebody, “Oh, I'm +working on a spreadsheet,” and he said, “Oh, did you know +those other companies that are making spreadsheets are getting +sued?” Then you would have found out.</p> + +<p>Well, you can't find all the patents by searching, but you can find +a lot of them. And then you've got to figure out what they mean, +which is hard, because patents are written in tortuous legal language +which is very hard to understand the real meaning of. So you're going +to have to spend a lot of time talking with an expensive lawyer +explaining what you want to do in order to find out from the lawyer +whether you're allowed to do it.</p> + +<p>Even the patent holders often can't recognize just what their +patents mean. For instance, there's somebody named Paul Heckel who +released a program for displaying a lot of data on a small screen, and +based on a couple of the ideas in that program he got a couple of +patents.</p> + +<p>I once tried to find a simple way to describe what claim 1 of one +of those patents covered. I found that I couldn't find any simpler +way of saying it than what was in the patent itself; and that +sentence, I couldn't manage to keep it all in my mind at once, no +matter how hard I tried.</p> + +<p>And Heckel couldn't follow it either, because when he saw +HyperCard, all he noticed was it was nothing like his program. It +didn't occur to him that the way his patent was written it might +prohibit HyperCard; but his lawyer had that idea, so he threatened +Apple. And then he threatened Apple's customers, and eventually Apple +made a settlement with him which is secret, so we don't know who +really won. And this is just an illustration of how hard it is for +anybody to understand what a patent does or doesn't prohibit.</p> + +<p>In fact, I once gave this speech and Heckel was in the audience. +And at this point he jumped up and said, “That's not true, I +just didn't know the scope of my protection.” And I said, +“Yeah, that's what I said,” at which point he sat down and +that was the end of my experience being heckled by Heckel. If I had +said no, he probably would have found a way to argue with me.</p> + +<p>Anyway, after a long, expensive conversation with a lawyer, the +lawyer will give you an answer like this:</p> + +<blockquote><p>If you do something in this area, you're almost certain +to lose a lawsuit; if you do something in this area, there's a +considerable chance of losing a lawsuit; and if you really want to be +safe you've got to stay out of this area. But there's a sizeable +element of chance in the outcome of any lawsuit.</p></blockquote> + +<p>So now that you have clear, predictable rules for doing business, +what are you actually going to do? Well, there are three things that +you could do to deal with the issue of any particular patent. One is +to avoid it, another is to get a license for it, and the third is to +invalidate it. So I'll talk about these one by one.</p> + +<p>First, there's the possibility of avoiding the patent, which means, +don't implement what it prohibits. Of course, if it's hard to tell +what it prohibits, it might be hard to tell what would suffice to +avoid it.</p> + +<p>A couple of years ago Kodak sued Sun [for] using a patent for +something having to do with object-oriented programming, and Sun +didn't think it was infringing that patent. But the court decided it +was; and when other people look at that patent they haven't the +faintest idea whether that decision was right or not. No one can tell +what that patent does or doesn't cover, but Sun had to pay hundreds of +millions of dollars because of violating a completely incomprehensible +law.</p> + +<p>Sometimes you can tell what you need to avoid, and sometimes what +you need to avoid is an algorithm.</p> + +<p>For instance, I saw a patent for something like the fast Fourier +transform, but it ran twice as fast. Well, if the ordinary FFT is +fast enough for your application then that's an easy way to avoid this +other one. And most of the time that would work. Once in a while you +might be trying to do something where it runs doing FFT all the time, +and it's just barely fast enough using the faster algorithm. And then +you can't avoid it, although maybe you could wait a couple of years +for a faster computer. But that's going to be rare. Most of the time +that patent will to be easy to avoid.</p> + +<p>On the other hand, a patent on an algorithm may be impossible to +avoid. Consider the LZW data compression algorithm. Well, as I +explained, we found a better data compression algorithm, and everybody +who wanted to compress files switched to the program gzip +which used the better algorithm. And the reason is, if you just want +to compress the file and uncompress it later, you can tell people to +use this program to uncompress it; then you can use any program with +any algorithm, and you only care how well it works.</p> + +<p>But LZW is used for other things, too; for instance the PostScript +language specifies operators for LZW compression and LZW +uncompression. It's no use having another, better algorithm because +it makes a different format of data. They're not interoperable. If +you compress it with the gzip algorithm, you won't be able to +uncompress it using LZW. So no matter how good your other algorithm +is, and no matter what it is, it just doesn't enable you to implement +PostScript according to the specs.</p> + +<p>But I noticed that users rarely ask their printers to compress +things. Generally the only thing they want their printers to do is to +uncompress; and I also noticed that both of the patents on the LZW +algorithm were written in such a way that if your system can only +uncompress, it's not forbidden. These patents were written so that +they covered compression, and they had other claims covering both +compression and uncompression; but there was no claim covering only +uncompression. So I realized that if we implement only the +uncompression for LZW, we would be safe. And although it would not +satisfy the specification, it would please the users sufficiently; it +would do what they actually needed. So that's how we barely squeaked +by avoiding the two patents.</p> + +<p>Now there is GIF format, for images. That uses the LZW +algorithm also. It didn't take long for people to define another +image format, called PNG, which stands for “PNG's Not +GIF”. I think it uses the gzip algorithm. And we +started saying to people, “Don't use GIF format, it's +dangerous. Switch to PNG.” And the users said, +“Well, maybe some day, but the browsers don't implement it +yet,” and the browser developers said, “We may implement +it someday, but there's not much demand from users.”</p> + +<p>Well, it's pretty obvious what's going on—GIF was a +de facto standard. In effect, asking people to switch to a different +format, instead of their de facto standard, is like asking everyone in +New Zealand to speak Hungarian. People will say, “Well, yeah, +I'll learn to speak it after everyone else does.” And so we +never succeeded in asking people to stop using GIF, even +though one of those patent holders was going around to operators of +web sites, threatening to sue them unless they could prove that all of +the GIFs on the site were made with authorized, licensed +software.</p> + +<p>So GIF was a dangerous trap for a large part of our +community. We thought we had an alternative to GIF format, +namely JPEG, but then somebody said, “I was just looking +through my portfolio of patents”—I think it was somebody that +just bought patents and used them to threaten people—and he +said, “and I found that one of them covers JPEG format.”</p> + +<p>Well, JPEG was not a de facto standard, it's an official +standard, issued by a standards committee; and the committee had a +lawyer too. Their lawyer said he didn't think that this patent +actually covered JPEG format.</p> + +<p>So who's right? Well, this patent holder sued a bunch of +companies, and if there was a decision, it would have said who was +right. But I haven't heard about a decision; I'm not sure if there +ever was one. I think they settled, and the settlement is almost +certainly secret, which means that it didn't tell us anything about +who's right.</p> + +<p>These are fairly lightweight cases: one patent on JPEG, +two patents on the LZW algorithm used in GIF. Now you might +wonder how come there are two patents on the same algorithm? It's not +supposed to happen, but it did. And the reason is that the patent +examiners can't possibly take the time to study every pair of things +they might need to study and compare, because they're not allowed to +take that much time. And because algorithms are just mathematics, +there's no way you can narrow down which applications and patents you +need to compare.</p> + +<p>You see, in physical engineering fields, they can use the physical +nature of what's going on to narrow things down. For instance, in +chemical engineering, they can say, “What are the substances +going in? What are the substances coming out?” If two different +[patent] applications are different in that way, then they're not the +same process so you don't need to worry. But the same math can be +represented in ways that can look very different, and until you study +them both together, you don't realize they're talking about the same +thing. And, because of this, it's quite common to see the same thing +get patented multiple times [in software].</p> + +<p>Remember that program that was killed by a patent before we +released it? Well, that algorithm got patented twice also. In one +little field we've seen it happen in two cases that we ran +into—the same algorithm being patented twice. Well, I think my +explanation tells you why that happens.</p> + +<p>But one or two patents is a lightweight case. What +about MPEG2, the video format? I saw a list of over 70 +patents covering that, and the negotiations to arrange a way for +somebody to license all those patents took longer than developing the +standard itself. The JPEG committee wanted to develop a +follow-on standard, and they gave up. They said there were too many +patents; there was no way to do it.</p> + +<p>Sometimes it's a feature that's patented, and the only way to avoid +that patent is not to implement that feature. For instance, the users +of the word processor Xywrite once got a downgrade in the mail, which +removed a feature. The feature was that you could define a list of +abbreviations. For instance, if you define “exp” as an +abbreviation for “experiment”, then if you type “exp-space“ or “exp-comma”, the “exp” would change automatically to +“experiment”.</p> + +<p>Then somebody who had a patent on this feature threatened them, and +they concluded that the only thing they could do was to take the +feature out. And so they sent all the users a downgrade.</p> + +<p>But they also contacted me, because my Emacs editor had a feature +like that starting from the late 70s. And it was described in the +Emacs manual, so they thought I might be able to help them invalidate +that patent. Well, I'm happy to know I've had at least one patentable +idea in my life, but I'm unhappy that someone else patented it.</p> + +<p>Fortunately, in fact, that patent was eventually invalidated, and +partly on the strength of the fact that I had published using it +earlier. But in the meantime they had had to remove this feature.</p> + +<p>Now, to remove one or two features may not be a disaster. But when +you have to remove 50 features, you could do it, but people are likely +to say, “This program's no good; it's missing all the features I +want.” So it may not be a solution. And sometimes a patent is +so broad that it wipes out an entire field, like the patent on +public-key encryption, which in fact put public-key encryption +basically off limits for about ten years.</p> + +<p>So that's the option of avoiding the patent—often possible, +but sometimes not, and there's a limit to how many patents you can +avoid.</p> + +<p>What about the next possibility, of getting a license for the +patent?</p> + +<p>Well, the patent holder may not offer you a license. It's entirely +up to him. He could say, “I just want to shut you down.” +I once got a letter from somebody whose family business was making +casino games, which were of course computerized, and he had been +threatened by a patent holder who wanted to make his business shut +down. He sent me the patent. Claim 1 was something like “a +network with a multiplicity of computers, in which each computer +supports a multiplicity of games, and allows a multiplicity of game +sessions at the same time”.</p> + +<p>Now, I'm sure in the 1980s there was a university that set up a +room with a network of workstations, and each workstation had some +kind of windowing facility. All they had to do was to install +multiple games and it would be possible to display multiple game +sessions at once. This is so trivial and uninteresting that nobody +would have bothered to publish an article about doing it. No one +would have been interested in publishing an article about doing it, +but it was worth patenting it. If it had occurred to you that you +could get a monopoly on this trivial thing, then you could shut down +your competitors with it.</p> + +<p>But why does the Patent Office issue so many patents that seem +absurd and trivial to us?</p> + +<p>It's not because the patent examiners are stupid, it's because +they're following a system, and the system has rules, and the rules +lead to this result.</p> + +<p>You see, if somebody has made a machine that does something once, +and somebody else designs a machine that will do the same thing, but N +times, for us that's a <code>for</code>-loop, but for the Patent Office +that's an invention. If there are machines that can do A, and there +are machines that can do B, and somebody designs a machine that can do +A or B, for us that's an <code>if-then-else</code> statement, but for the +Patent Office that's an invention. So they have very low standards, +and they follow those standards; and the result is patents that look +absurd and trivial to us. Whether they're legally valid I can't say. +But every programmer who sees them laughs.</p> + +<p>In any case, I was unable to suggest anything he could do to help +himself, and he had to shut down his business. But most patent +holders will offer you a license. It's likely to be rather +expensive.</p> + +<p>But there are some software developers that find it particularly +easy to get licenses, most of the time. Those are the +megacorporations. In any field the megacorporations generally own +about half the patents, and they cross-license each other, and they +can make anybody else cross-license if he's really producing anything. +The result is that they end up painlessly with licenses for almost all +the patents.</p> + +<p>IBM wrote an article in its house magazine, <cite>Think</cite> +magazine—I think it's issue 5, 1990—about the benefit IBM +got from its almost 9,000 US patents at the time (now it's up to +45,000 or more). They said that one of the benefits was that they +collected money, but the main benefit, which they said was perhaps an +order of magnitude greater, was “getting access to the patents +of others,” namely cross-licensing.</p> + +<p>What this means is since IBM, with so many patents, can make almost +everybody give them a cross-license, IBM avoids almost all the grief +that the patent system would have inflicted on anybody else. So +that's why IBM wants software patents. That's why the +megacorporations in general want software patents, because they know +that by cross-licensing, they will have a sort of exclusive club on +top of a mountain peak. And all the rest of us will be down here, and +there's no way we can get up there. You know, if you're a genius, you +might start up a small company and get some patents, but you'll never +get into IBM's league, no matter what you do.</p> + +<p>Now a lot of companies tell their employees, “Get us patents +so we can defend ourselves” and they mean, “use them to +try to get cross-licensing,” but it just doesn't work well. +It's not an effective strategy if you've got a small number of +patents.</p> + +<p>Suppose you've got three patents. One points there, one points +there, and one points there, and somebody over there points a patent +at you. Well, your three patents don't help you at all, because none +of them points at him. On the other hand, sooner or later, somebody +in the company is going to notice that this patent is actually +pointing at some people, and [the company] could threaten them and +squeeze money out of them—never mind that those people didn't +attack this company.</p> + +<p>So if your employer says to you, “We need some patents to +defend ourselves, so help us get patents,” I recommend this +response:</p> + +<blockquote><p>Boss, I trust you and I'm sure you would only use those +patents to defend the company if it's attacked. But I don't know +who's going to be the CEO of this company in five years. For all I +know, it might get acquired by Microsoft. So I really can't trust the +company's word to only use these patents for defense unless I get it +in writing. Please put it in writing that any patents I provide for +the company will only be used for self-defense and collective +security, and not for repression, and then I'll be able to get patents +for the company with a clean conscience.</p></blockquote> + +<p>It would be most interesting to raise this not just in private with +your boss, but also on the company's discussion list.</p> + +<p>The other thing that could happen is that the company could fail +and its assets could be auctioned off, including the patents; and the +patents will be bought by someone who means to use them to do +something nasty.</p> + +<p>This cross-licensing practice is very important to understand, +because this is what punctures the argument of the software patent +advocates who say that software patents are needed to protect the +starving genius. They give you a scenario which is a series of +unlikelihoods.</p> + +<p>So let's look at it. According to this scenario, there's a +brilliant designer of whatever, who's been working for years by +himself in his attic coming up with a better way to do whatever it is. +And now that it's ready, he wants to start a business and mass-produce +this thing; and because his idea is so good his company will +inevitably succeed— except for one thing: the big companies will +compete with him and take all his market the away. And because of +this, his business will almost certainly fail, and then he will +starve.</p> + +<p>Well, let's look at all the unlikely assumptions here.</p> + +<p>First of all, that he comes up with this idea working by himself. +That's not very likely. In a high-tech field, most progress is made +by people working in a field, doing things and talking with people in +the field. But I wouldn't say it's impossible, not that one thing by +itself.</p> + +<p>But anyway the next supposition is that he's going to start a +business and that it's going to succeed. Well, just because he's a +brilliant engineer doesn't mean that he's any good at running a +business. Most new businesses fail; more than 95 percent of them, I think, +fail within a few years. So that's probably what's going to happen to +him, no matter what.</p> + +<p>Ok, let's assume that in addition to being a brilliant engineer who +came up with something great by himself, he's also talented at running +businesses. If he has a knack for running businesses, then maybe his +business won't fail. After all, not all new businesses fail, there +are a certain few that succeed. Well, if he understands business, +then instead of trying to go head to head with large companies, he +might try to do things that small companies are better at and have a +better chance of succeeding. He might succeed. But let's suppose it +fails anyway. If he's so brilliant and has a knack for running +businesses, I'm sure he won't starve, because somebody will want to +give him a job.</p> + +<p>So a series of unlikelihoods—it's not a very plausible +scenario. But let's look at it anyway.</p> + +<p>Because where they go from there is to say the patent system will +“protect” our starving genius, because he can get a patent +on this technique. And then when IBM wants to compete with him, he +says, “IBM, you can't compete with me, because I've got this +patent,” and IBM says, “Oh, no, not again!”</p> + +<p>Well, here's what really happens.</p> + +<p>IBM says, “Oh, how nice, you have a patent. Well, we have +this patent, and this patent, and this patent, and this patent, and +this patent, all of which cover other ideas implemented in your +product, and if you think you can fight us on all those, we'll pull +out some more. So let's sign a cross-license agreement, and that way +nobody will get hurt.” Now since we've assumed that our genius +understands business, he's going to realize that he has no choice. +He's going to sign the cross-license agreement, as just about +everybody does when IBM demands it. And then this means that IBM will +get “access” to his patent, meaning IBM would be free to +compete with him just as if there were no patents, which means that +the supposed benefit that they claim he would get by having this +patent is not real. He won't get this benefit.</p> + +<p>The patent might “protect” him from competition from +you or me, but not from IBM—not from the very megacorporations +which the scenario says are the threat to him. You know in advance +that there's got to be a flaw in this reasoning when people who are +lobbyists for megacorporations recommend a policy supposedly because +it's going to protect their small competitors from them. If it really +were going to do that, they wouldn't be in favor of it. But this +explains why [software patents] won't do it.</p> + +<p>Even IBM can't always do this, because there are companies that we +refer to as patent trolls or patent parasites, and their only business +is using patents to squeeze money out of people who really make +something.</p> + +<p>Patent lawyers tell us that it's really wonderful to have patents +in your field, but they don't have patents in their field. There are +no patents on how to send or write a threatening letter, no patents on +how to file a lawsuit, and no patents on how to persuade a judge or +jury, so even IBM can't make the patent trolls cross-license. But IBM +figures, “Our competition will have to pay them too; this is +just part of the cost of doing business, and we can live with +it.” IBM and the other megacorporations figure that the general +dominion over all activity that they get from their patents is good +for them, and paying off the trolls they can live with. So that's why +they want software patents.</p> + +<p>There are also certain software developers who find it particularly +difficult to get a patent license, and those are the developers of +free software. The reason is that the usual patent license has +conditions we can't possibly fulfill, because usual patent licenses +demand a payment per copy. But when software gives users the freedom +to distribute and make more copies, we have no way to count the copies +that exist.</p> + +<p>If someone offered me a patent license for a payment of +one-millionth of a dollar per copy, the total amount of money I'd have +to pay maybe is in my pocket now. Maybe it's 50 dollars, but I don't +know if it's 50 dollars, or 49, or what, because there's no way I can +count the copies that people have made.</p> + +<p>A patent holder doesn't have to demand a payment per copy; a patent +holder could offer you a license for a single lump sum, but those lump +sums tend to be big, like US$100,000.</p> + +<p>And the reason that we've been able to develop so much +freedom-respecting software is [that] we can develop software without +money, but we can't pay a lot of money without money. If we're forced +to pay for the privilege of writing software for the public, we won't +be able to do it very much.</p> + +<p>That's the possibility of getting a license for the patent. The +other possibility is to invalidate the patent. If the country +considers software patents to be basically valid, and allowed, the +only question is whether that particular patent meets the criteria. +It's only useful to go to court if you've got an argument to make that +might prevail.</p> + +<p>What would that argument be? You have to find evidence that, years +ago, before the patent was applied for, people knew about the same +idea. And you'd have to find things today that demonstrate that they +knew about it publicly at that time. So the dice were cast years ago, +and if they came up favorably for you, and if you can prove that fact +today, then you have an argument to use to try to invalidate the +patent. And it might work.</p> + +<p>It might cost you a lot of money to go through this case, and as a +result, a probably invalid patent is a very frightening weapon to be +threatened with if you don't have a lot of money. There are people +who can't afford to defend their rights—lots of them. The ones +who can afford it are the exception.</p> + +<p>These are the three things that you might be able to do about each +patent that prohibits something in your program. The thing is, +whether each one is possible depends on different details of the +circumstances, so some of the time, none of them is possible; and when +that happens, your project is dead.</p> + +<p>But lawyers in most countries tell us, “Don't try to find the +patents in advance”, and the reason is that the penalty for +infringement is bigger if you knew about the patent. So what they +tell you is “Keep your eyes shut. Don't try to find out about +the patents, just go blindly taking your design decisions, and +hope.”</p> + +<p>And of course, with each single design decision, you probably don't +step on a patent. Probably nothing happens to you. But there are so +many steps you have to take to get across the minefield, it's very +unlikely you will get through safely. And of course, the patent +holders don't all show up at the same time, so you don't know how many +there are going to be.</p> + +<p>The patent holder of the natural order recalculation patent was +demanding 5 percent of the gross sales of every spreadsheet. You could +imagine paying for a few such licenses, but what happens when patent +holder number 20 comes along, and wants you to pay out the last +remaining 5 percent? And then what happens when patent holder number 21 +comes along?</p> + +<p>People in business say that this scenario is amusing but absurd, +because your business would fail long before you got there. They told +me that two or three such licenses would make your business fail. So +you'd never get to 20. They show up one by one, so you never know how +many more there are going to be.</p> + +<p>Software patents are a mess. They're a mess for software +developers, but in addition they're a restriction on every computer +user because software patents restrict what you can do on your +computer.</p> + +<p>This is very different from patents, for instance, on automobile +engines. These only restrict companies that make cars; they don't +restrict you and me. But software patents do restrict you and me, and +everybody who uses computers. So we can't think of them in purely +economic terms; we can't judge this issue purely in economic terms. +There's something more important at stake.</p> + +<p>But even in economic terms, the system is self-defeating, because +its purpose is supposed to be to promote progress. Supposedly by +creating this artificial incentive for people to publish ideas, it's +going to help the field progress. But all it does is the exact +opposite, because the big job in software is not coming up with ideas, +it's implementing thousands of ideas together in one program. And +software patents obstruct that, so they're economically +self-defeating.</p> + +<p>And there's even economic research showing that this is +so—showing how in a field with a lot of incremental innovation, +a patent system can actually reduce investment in R & D. And of +course, it also obstructs development in other ways. So even if we +ignore the injustice of software patents, even if we were to look at +it in the narrow economic terms that are usually proposed, it's still +harmful.</p> + +<p>People sometimes respond by saying that “People in other +fields have been living with patents for decades, and they've gotten +used to it, so why should you be an exception?”</p> + +<p>Now, that question has an absurd assumption. It's like saying, +“Other people get cancer, why shouldn't you?” I think +every time someone doesn't get cancer, that's good, regardless of what +happened to the others. That question is absurd because of its +presupposition that somehow we all have a duty to suffer the harm done +by patents.</p> + +<p>But there is a sensible question buried inside it, and that +sensible question is “What differences are there between various +fields that might affect what is good or bad patent policy in those +fields?”</p> + +<p>There is an important basic difference between fields in regard to +how many patents are likely to prohibit or cover parts of any one +product.</p> + +<p>Now we have a naive idea in our minds which I'm trying to get rid +of, because it's not true. And it's that on any one product there is +one patent, and that patent covers the overall design of that product. +So if you design a new product, it can't be patented already, and you +will have an opportunity to get “the patent” on that +product.</p> + +<p>That's not how things work. In the 1800s, maybe they did, but not +now. In fact, fields fall on a spectrum of how many patents [there +are] per product. The beginning of the spectrum is one, but no field +is like that today; fields are at various places on this spectrum.</p> + +<p>The field that's closest to that is pharmaceuticals. A few decades +ago, there really was one patent per pharmaceutical, at least at any +time, because the patent covered the entire chemical formula of that +one particular substance. Back then, if you developed a new drug, you +could be sure it wasn't already patented by somebody else and you +could get the one patent on that drug.</p> + +<p>But that's not how it works now. Now there are broader patents, so +now you could develop a new drug, and you're not allowed to make it +because somebody has a broader patent which covers it already.</p> + +<p>And there might even be a few such patents covering your new drug +simultaneously, but there won't be hundreds. The reason is, our +ability to do biochemical engineering is so limited that nobody knows +how to combine so many ideas to make something that's useful in +medicine. If you can combine a couple of them you're doing pretty +well at our level of knowledge. But other fields involve combining +more ideas to make one thing.</p> + +<p>At the other end of the spectrum is software, where we can combine +more ideas into one usable design than anybody else, because our field +is basically easier than all other fields. I'm presuming that the +intelligence of people in our field is the same as that of people in +physical engineering. It's not that we're fundamentally better than +they are; it's that our field is fundamentally easier, because we're +working with mathematics.</p> + +<p>A program is made out of mathematical components, which have a +definition, whereas physical objects don't have a definition. The +matter does what it does, so through the perversity of matter, your +design may not work the way it “should” have worked. And that's just +tough. You can't say that the matter has a bug in it, and the +physical universe should get fixed. [Whereas] we [programmers] can +make a castle that rests on a mathematically thin line, and it stays +up because nothing weighs anything.</p> + +<p>There're so many complications you have to cope with in physical +engineering that we don't have to worry about.</p> + +<p>For instance, when I put an <code>if</code>-statement inside of +a <code>while</code>-loop, +</p> + +<ul> +<li>I don't have to worry that if this <code>while</code>-loop repeats + at the wrong rate, the <code>if</code>-statement might start to + vibrate and it might resonate and crack;</li> + +<li>I don't have to worry that if it resonates much faster—you + know, millions of times per second—that it might generate + radio frequency signals that might induce wrong values in other + parts of the program;</li> + +<li>I don't have to worry that corrosive fluids from the environment + might seep in between the <code>if</code>-statement and + the <code>while</code>-statement and start eating away at them until + the signals don't pass anymore;</li> + +<li>I don't have to worry about how the heat generated by my + <code>if</code>-statement is going to get out through + the <code>while</code>-statement so that it doesn't make + the <code>if</code>-statement burn out; and</li> + +<li>I don't have to worry about how I would take out the broken + <code>if</code>-statement if it does crack, burn, or corrode, and + replace it with another <code>if</code>-statement to make the + program run again.</li> +</ul> + +<p>For that matter, I don't have to worry about how I'm going to +insert the <code>if</code>-statement inside +the <code>while</code>-statement every time I produce a copy of the +program. I don't have to design a factory to make copies of my +program, because there are various general commands that will make +copies of anything.</p> + +<p>If I want to make copies on CD, I just have to write a master; and +there's one program I can [use to] make a master out of anything, +write any data I want. I can make a master CD and write it and send +it off to a factory, and they'll duplicate whatever I send them. I +don't have to design a different factory for each thing I want to +duplicate.</p> + +<p>Very often with physical engineering you have to do that; you have +to design products for manufacturability. Designing the factory may +even be a bigger job than designing the product, and then you may have +to spend millions of dollars to build the factory. So with all of +this trouble, you're not going to be able to put together so many +different ideas in one product and have it work.</p> + +<p>A physical design with a million nonrepeating different design +elements is a gigantic project. A program with a million different +design elements, that's nothing. It's a few hundred thousand lines of +code, and a few people will write that in a few years, so it's not a +big deal. So the result is that the patent system weighs +proportionately heavier on us than it does on people in any other +field who are being held back by the perversity of matter.</p> + +<p>A lawyer did a study of one particular large program, namely the +kernel Linux, which is used together with the GNU operating system +that I launched. This was five years ago now; he found 283 different +US patents, each of which appeared to prohibit some computation done +somewhere in the code of Linux. At the time I saw an article saying +that Linux was 0.25 percent of the whole system. So by multiplying 300 by +400 we can estimate the number of patents that would prohibit +something in the whole system as being around 100,000. This is a very +rough estimate only, and no more accurate information is available, +since trying to figure it out would be a gigantic task.</p> + +<p>Now this lawyer did not publish the list of patents, because that +would have endangered the developers of Linux the kernel, putting them +in a position where the penalties if they were sued would be greater. +He didn't want to hurt them; he wanted to demonstrate how bad this +problem is, of patent gridlock.</p> + +<p>Programmers can understand this immediately, but politicians +usually don't know much about programming; they usually imagine that +patents are basically much like copyrights, only somehow stronger. +They imagine that since software developers are not endangered by the +copyrights on their work, that they won't be endangered by the patents +on their work either. They imagine that, since when you write a +program you have the copyright, [therefore likewise] if you write a +program you have the patents also. This is false—so how do we +give them a clue what patents would really do? What they really do in +countries like the US?</p> + +<p>I find it's useful to make an analogy between software and +symphonies. Here's why it's a good analogy.</p> + +<p>A program or symphony combines many ideas. A symphony combines +many musical ideas. But you can't just pick a bunch of ideas and say +“Here's my combination of ideas, do you like it?” Because +in order to make them work you have to implement them all. You can't +just pick musical ideas and list them and say, “Hey, how do you +like this combination?” You can't hear that [list]. You have to +write notes which implement all these ideas together.</p> + +<p>The hard task, the thing most of us wouldn't be any good at, is +writing all these notes to make the whole thing sound good. Sure, +lots of us could pick musical ideas out of a list, but we wouldn't +know how to write a good-sounding symphony to implement those ideas. +Only some of us have that talent. That's the thing that limits you. +I could probably invent a few musical ideas, but I wouldn't know how +to use them to any effect.</p> + +<p>So imagine that it's the 1700s, and the governments of Europe +decide that they want to promote the progress of symphonic music by +establishing a system of musical idea patents, so that any musical +idea described in words could be patented.</p> + +<p>For instance, using a particular sequence of notes as a motif could +be patented, or a chord progression could be patented, or a rhythmic +pattern could be patented, or using certain instruments by themselves +could be patented, or a format of repetitions in a movement could be +patented. Any sort of musical idea that could be described in words +would have been patentable.</p> + +<p>Now imagine that it's 1800 and you're Beethoven, and you want to +write a symphony. You're going to find it's much harder to write a +symphony you don't get sued for than to write one that sounds good, +because you have to thread your way around all the patents that exist. +If you complained about this, the patent holders would say, “Oh, +Beethoven, you're just jealous because we had these ideas first. Why +don't you go and think of some ideas of your own?”</p> + +<p>Now Beethoven had ideas of his own. The reason he's considered a +great composer is because of all of the new ideas that he had, and he +actually used. And he knew how to use them in such a way that they +would work, which was to combine them with lots of well-known ideas. +He could put a few new ideas into a composition together with a lot of +old and uncontroversial ideas. And the result was a piece that was +controversial, but not so much so that people couldn't get used to +it.</p> + +<p>To us, Beethoven's music doesn't sound controversial; I'm told it +was, when it was new. But because he combined his new ideas with a +lot of known ideas, he was able to give people a chance to stretch a +certain amount. And they could, which is why to us those ideas sound +just fine. But nobody, not even a Beethoven, is such a genius that he +could reinvent music from zero, not using any of the well-known ideas, +and make something that people would want to listen to. And nobody is +such a genius he could reinvent computing from zero, not using any of +the well-known ideas, and make something that people want to use.</p> + +<p>When the technological context changes so frequently, you end up +with a situation where what was done 20 years ago is totally +inadequate. Twenty years ago there was no World Wide Web. So, sure, +people did a lot of things with computers back then, but what they +want to do today are things that work with the World Wide Web. And +you can't do that using only the ideas that were known 20 years ago. +And I presume that the technological context will continue to change, +creating fresh opportunities for somebody to get patents that give the +shaft to the whole field.</p> + +<p>Big companies can even do this themselves. For instance, a few +years ago Microsoft decided to make a phony open standard for +documents and to get it approved as a standard by corrupting the +International Standards Organization, which they did. But they +designed it using something that Microsoft had patented. Microsoft is +big enough that it can start with a patent, design a format or +protocol to use that patented idea (whether it's helpful or not), in +such a way that there's no way to be compatible unless you use that +same idea too. And then Microsoft can make that a de facto standard +with or without help from corrupted standards bodies. Just by its +weight it can push people into using that format, and that basically +means that they get a stranglehold over the whole world. So we need +to show the politicians what's really going on here. We need to show +them why this is bad.</p> + +<p>Now I've heard it said that the reason New Zealand is considering +software patents is that one large company wants to be given some +monopolies. To restrict everyone in the country so that one company +will make more money is the absolute opposite of statesmanship.</p> + +<p>So, at this point, I'd like to ask for questions.</p></dd> + +<dt>Q.</dt> +<dd>What is the alternative?</dd> + +<dt>A.</dt> +<dd>No software patents. I know that that works fine. I was in the +field when there were no software patents. And that meant people +developed software, and they distributed that software in various +ways, and they didn't have to worry about getting sued by patent +holders for doing it, so they were safe. Software patents don't solve +a real problem, so we don't need to ask what other solution is +there.</dd> + +<dt>Q.</dt> +<dd>How do the developers get rewarded?</dd> + +<dt>A.</dt> +<dd><p>Many ways. Software patents have nothing to do with that. +Remember if you're a software developer, software patents don't help +you get whatever you want to get.</p> + +<p>Different software developers want different things. I developed +some important software in the 1980s, and the reward I wanted was to +see people using computers in freedom. And I got that reward, +although not totally, not everybody has freedom. But software patents +would only have stopped me.</p> + +<p>Other people developed programs because they wanted money. +Software patents threaten them, too, and still threaten them, because +you're not going to make any money if patent holders demand that you +give it all to them, or if they make you shut down.</p></dd> + +<dt>Q.</dt> +<dd>How do you prevent plagiarism and still…</dd> + +<dt>A.</dt> +<dd><p>Plagiarism has nothing to do with this issue. It has +absolutely nothing to do with this issue.</p> + +<p>Plagiarism means copying the text of a work and claiming to have +written it yourself. But patents are not concerned with the text of +any particular work. They simply have nothing to do with this.</p> + +<p>If you write a work and this work embodies some ideas, which it +always does, there's no reason to think that the patents covering +those ideas would belong to you. They're more likely to belong to +lots of others, and half of them to the megacorporations, and they can +then all sue you. So you don't even have to worry [about plagiarism]; +long before you get to the point where somebody else might copy it, +you're going to be getting the shaft.</p> + +<p>You are confusing patents with copyrights, I'm afraid. They have +nothing in common. I've explained to you what the patent system does +to software, but I think you don't believe me because you've heard +what copyrights do and you're confusing the two, so these impressions +you've got about what copyrights do, you're just assuming that patents +do them also—and they don't. If you write some code, the +copyright on that code would belong to you; but if your code +implements ideas, if some of these ideas are patented, those patents +belong to others who could then sue you.</p> + +<p>You don't have to be afraid, with copyright, that when you write +code yourself, that somebody else already has a copyright on it and +can sue you, because copyright only restricts copying. In fact, even +if you write something which is identical to what somebody else wrote, +if you can prove you didn't copy it, that's a defense under copyright +law, because copyright law is only concerned with copying. But +copyright law is only concerned with the details of authorship of a +work [i.e., not the ideas it embodies], so it has nothing in common +with patent law in terms of what it deals with, and the effects are +totally different.</p> + +<p>Now I'm not in favor personally of all the things that people do +with copyright law, I've criticized it. But it's a totally different, +unrelated issue. If you think that patent law helps somebody who is +developing software, it means that you have got a completely wrong +picture of what patent law actually does.</p></dd> + +<dt>Q.</dt> +<dd>Don't get me wrong. I'm on your side.</dd> + +<dt>A.</dt> +<dd>OK, but still you've got a wrong picture. I'm not blaming you for +it, because you've just been misinformed.</dd> + +<dt>Q.</dt> +<dd>If I'm writing software for commercial purposes, do I get good +protection by treating it as a black box and keeping it secret?</dd> + +<dt>A.</dt> +<dd>I don't want to discuss that question because I'm not in favor of +it, I think it's unethical to do that, but that's an unrelated +issue.</dd> + +<dt>Q.</dt> +<dd>I understand that.</dd> + +<dt>A.</dt> +<dd>I don't want to change the subject and then praise something that +I think is bad. But because it's a change of subject I'd rather not +get into that.</dd> + +<dt>Q.</dt> +<dd>Our Foundation for Research, Science, and Technology, I think +they're probably the equivalent of your National Science Foundation, +provides grants for research and development and one of the things +that they propose pretty actively is that ideas that they have funded +should be secured if possible by patents.</dd> + +<dt>A.</dt> +<dd>That shouldn't be the case in software, because software ideas +shouldn't be patentable ever by anyone. But what you are seeing +there, more generally, is an example of the general corruption of our +society by putting commercial aims above all others. Now I'm not a +communist and I don't want to abolish business, but when it becomes +business above all, every aspect of life oriented towards business, +that is dangerous.</dd> + +<dt>Q.</dt> +<dd>So Richard, if you talk to the Foundation, perhaps you might +propose that there are better ways for a small country like New +Zealand to make money on software.</dd> + +<dt>A.</dt> +<dd>Software patents don't help anybody make money out of software. +They mean that you're in danger of getting sued when you try.</dd> + +<dt>Q.</dt> +<dd>Which makes it difficult for New Zealand as a country to build an +economic base using software as part of that.</dd> + +<dt>A.</dt> +<dd>Sorry, when you say “which” I don't know what you are +referring to. Software patents will make it difficult for anyone. If +New Zealand allows software patents, that will make it difficult in +New Zealand for anybody to develop programs and distribute them, +because you'll be in danger of getting sued. Software patents have +nothing to do with developing a program and then putting it to some +use.</dd> + +<dt>Q.</dt> +<dd>So New Zealand, in terms of its economic development, it would be +better protected by having no software patents.</dd> + +<dt>A.</dt> +<dd><p>Yes. You see, each country has its own patent system, and they +work independently, except that countries have signed up to a treaty +that says, “If you have got a patent in that country, you can +basically bring your application over here, and we'll judge it based +on the year you applied for it over there.” But other than that, each +country has its own criteria for what can be patented and has its own +set of patents.</p> + +<p>So the result is if the US allows software patents and New Zealand +does not, that means that everybody in the world, including New +Zealanders, can get US software patents and sue us poor Americans at +home. But if New Zealand doesn't allow software patents that means +that neither you nor we can get New Zealand software patents to sue +you New Zealanders at home. You can be sure that almost all the +software patents will belong to foreigners who will use them to +basically kick any New Zealand software developers whenever they get +the chance.</p></dd> + +<dt>Q.</dt> +<dd>Since the Hughes Aircraft case, I think it was in the 1990s</dd> + +<dt>A.</dt> +<dd>I don't know about that case.</dd> + +<dt>Q.</dt> +<dd>But basically New Zealand's had software patents. It's not like +we're going into a field where we don't already have them, we do.</dd> + +<dt>A.</dt> +<dd><p>I don't know, but I'm told that there's a decision being made +now at the legislative level of whether to allow them. But Patent +Offices often respond to lobbying from megacorporations through +WIPO.</p> + +<p>WIPO, as you can tell from its name, which is the World +Intellectual Property Organization, is up to no good, because any use +of that term is spreading confusion. WIPO gets a lot of its funds +from megacorporations, and uses those funds to bring officials from +Patent Offices to idyllic resort destinations for training. What they +train them to do is twist the law to allow patents in areas where +they're not supposed to be allowed.</p> + +<p>In many countries there are laws and court decisions which say that +software as such can't be patented, algorithms can't be patented, or +“mathematical” algorithms can't be patented (no one's +quite sure what it means for an algorithm to be mathematical or not), +and various other criteria which if interpreted naturally would rule +out software patents, but the patent offices twist the law to allow +them anyway.</p> + +<p>For instance, a lot of things which practically speaking are +software patents have the form where they describe a system involving +a central processing unit, a memory, input/output facilities, +instruction-fetching facilities, and means to perform this particular +computation. In effect they've written explicitly into the patent all +the parts of an ordinary computer, and then they say, “Well, +this is a physical system which we would like to patent”, but +really it's just patenting certain software on a computer. There are +many subterfuges that they've used.</p> + +<p>Patent Offices will generally try to twist the law into allowing +more patents. In the US software patents were created by a court +decision in 1982, in the Appeals Court that deals with all patent +cases, which misunderstood a Supreme Court decision from the previous +year, and misapplied it. Now it looks like that Appeals Court has +finally changed its mind, and it's come to the conclusion that it was +mistaken all along; and it looks like this decision will get rid of +all software patents, unless the Supreme Court reverses it. The +Supreme Court is now considering it, and within less than a year we +should find out whether we've won or lost.</p></dd> + +<dt>Q.</dt> +<dd>Should that case be unsuccessful, is there any movement in the +States to take a legislated solution?</dd> + +<dt>A.</dt> +<dd>Yes, and I been promoting this for about 19 years now. It's a +battle that we fight over and over in various different +countries.</dd> + +<dt>Q.</dt> +<dd>Where in your universe do you put the in I4i case?</dd> + +<dt>A.</dt> +<dd>I have no idea what that is.</dd> + +<dt>Q.</dt> +<dd>It's where Microsoft has basically almost had to shut down on +selling Word, because they were found to have infringed a Canadian +patent.</dd> + +<dt>A.</dt> +<dd>Oh, that one. That's just an example of how dangerous software +patents are to all software developers. I don't like what Microsoft +does, but that's an issue that's irrelevant for this purpose. It's +not good that somebody can sue a software developer and say “I +won't let you distribute such software”.</dd> + +<dt>Q.</dt> +<dd>Obviously we live in an imperfect world, and in some cases we run +into the issue of software patents. Do you think that we should allow +privileges for researchers to get around patents in the same way that +copyright law allows research on copyright material?</dd> + +<dt>A.</dt> +<dd>No, it's a mistake to look for partial solutions, because we have +a much better chance of establishing a full solution. Everybody +involved in software development and distribution and use, except the +ones in the megacorporations, when they see how dangerous software +patents are, they will get behind total rejection of software patents. +Whereas an exception for some special case will only win support from +the people in that special case. These partial solutions are +essentially distractions. People start by saying, “Oh, I'm sure +we can't really solve the problem, so I give up on that. Let me +propose a partial solution.” But these partial solutions don't +make it safe to develop software.</dd> + +<dt>Q.</dt> +<dd>You wouldn't, however, oppose a partial solution that's not +necessarily just directed at software patents, so you wouldn't oppose +experimental use, which may be a good solution for the pharmaceutical +patent.</dd> + +<dt>A.</dt> +<dd>I wouldn't oppose that.</dd> + +<dt>Q.</dt> +<dd>But what you're saying is that you don't think it's applicable to +software, just to clarify.</dd> + +<dt>A.</dt> +<dd>Something that saves only a few of us, or only certain activities, +or gets rid of half the software patents, that's analogous to saying, +“Well, maybe we could clear part of the minefield, or maybe we +could destroy half the mines in the minefield.” [That's an +improvement] but that doesn't make it safe.</dd> + +<dt>Q.</dt> +<dd>So you've been speaking the same thing all around the world. How +much uptake has there been? Have governments changed, or not adopted +software patents?</dd> + +<dt>A.</dt> +<dd>Some have. In India a few years ago, there was an attempt to +change patent law to explicitly allow software patents and it was +dropped. A few years ago the US proposed a trade treaty, a free +exploitation treaty, with Latin America. And it was blocked by the +president of Brazil, who said no to software patents and another nasty +thing relating to computers, and that killed the whole treaty. That's +apparently the whole thing that the US wanted to impose on the rest of +the continent. But these things don't stay dead; there are companies +that have full-time staff looking for some way they can subvert some +country or other.</dd> + +<dt>Q.</dt> +<dd>Is there any real hard data around what happens in economic terms +in the innovation communities in countries that have essentially no +software patents?</dd> + +<dt>A.</dt> +<dd><p>There isn't any. It's almost impossible to measure these +things. Actually, I shouldn't say there isn't any. There is a +little. It's very hard to measure the effect of the patent system, +because you're comparing the real world with a counterfactual world, +and there's no way to be sure what would happen.</p> + +<p>What I can say is before there were software patents, there was +lots of software development; not as much as there is now, because of +course there were nowhere near as many computer users.</p> + +<p>How many computer users were there in 1982, even in the US? It was +a small fraction of the public. But there were software developers. +They weren't saying, “We desperately want patents”. They +weren't getting sued for patent infringement after they developed +their programs. But there is a bit of [economic] research that I saw +that apparently software patents resulted not in an increase in +research, but [in] a shift of funds from research into +patenting.</p></dd> + +<dt>Q.</dt> +<dd>Do you expect that there would be any interest in trade +secrets?</dd> + +<dt>A.</dt> +<dd>No. Before there were software patents, a lot of software +developers kept the details of their programs secret. But they +usually wouldn't keep any of the general ideas secret, because that +they realized that the big job in developing good software was not +picking your general ideas, it was implementing a lot of ideas +together. So they would publish, [or] they would let their employees +publish, in scholarly journals any interesting new ideas that they'd +had. So now, they'll patent those new ideas. It has very little to +do with developing a useful program, and just letting people know some +ideas doesn't give them a program. Besides, most of the ideas, the +thousands of ideas you've combined in your program, are known +anyway.</dd> + +<dt>Q.</dt> +<dd>To back that up, I was listening to an interview, one of the +founders of PayPal was interviewed, and he said that he really felt +strongly that his success was 5 percent idea and 95 percent execution, and that +supports your point really well.</dd> + +<dt>A.</dt> +<dd>I agree.</dd> + +<dt>SF:</dt> +<dd>Excellent. Richard has here stickers which I believe are +free</dd> + +<dt>RMS:</dt> +<dd>Gratis. And these [other items] are for sale.</dd> + +<dt>SF:</dt> +<dd>So you're welcome to come down. It's been a great debate—thank +you Richard.</dd> + +</dl> + +<hr /> +<blockquote id="fsfs"><p class="big">This speech is published +in <a href="http://shop.fsf.org/product/free-software-free-society/"><cite>Free +Software, Free Society: The Selected Essays of Richard +M. Stallman</cite></a>.</p></blockquote> + +</div><!-- for id="content", starts in the include above --> +<!--#include virtual="/server/footer.html" --> +<div id="footer"> +<div class="unprintable"> + +<p>Please send general FSF & GNU inquiries to +<a href="mailto:gnu@gnu.org"><gnu@gnu.org></a>. +There are also <a href="/contact/">other ways to contact</a> +the FSF. Broken links and other corrections or suggestions can be sent +to <a href="mailto:webmasters@gnu.org"><webmasters@gnu.org></a>.</p> + +<p><!-- TRANSLATORS: Ignore the original text in this paragraph, + replace it with the translation of these two: + + We work hard and do our best to provide accurate, good quality + translations. 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