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+<!-- Parent-Version: 1.79 -->
+
+<title>Solutions to the Software Patent Problem
+- GNU Project - Free Software Foundation</title>
+ <!--#include virtual="/philosophy/po/rms-patents.translist" -->
+<!--#include virtual="/server/banner.html" -->
+<h2>Solutions to the Software Patent Problem</h2>
+
+<p>by <strong>Richard Stallman</strong></p>
+
+<p><em>Speech given at the Locatelli Center, Santa Clara University,
+in November 2012</em>&nbsp; (<a
+href="//audio-video.gnu.org/video/keynote-what-is-the-problem.webm">video</a>,
+&nbsp;<a href="//audio-video.gnu.org/video/#2012">metadata</a>)</p>
+<hr />
+
+<p><b>Andrew Chen:</b> Thank you, Eric.</p>
+
+<p>My name is Andrew Chen. I teach patent law at the University of
+North Carolina, and I had a previous life as a Computer Science
+professor.</p>
+
+<p>I have the easiest job today, which is introducing two men who need
+no introduction. Richard Stallman, we know, is the founder of the
+free software movement, co-founder of the League for Programming
+Freedom, lead software architect for the GNU Project and author of
+Emacs, which he's described as a text editor and also a way of life.
+Something that I can agree with, having written my doctoral
+dissertation using his program.</p>
+
+<p>Dr Stallman has decided not to participate in the live streaming
+facility for today. He explains that use of the streaming online
+would require use of the Microsoft Silverlight plugin, which would
+pressure people to use proprietary software. Dr Stallman considers it
+wrong to pressure people to do that. He would like you to know that
+he plans to make a recording of his presentation available at a later
+time in either the Ogg Theora or WebM formats.</p>
+
+<p>Dr Stallman.</p>
+
+<p>[applause]</p>
+
+<p><b>Richard Stallman:</b> Can the tech people please confirm that
+the streaming is off?</p>
+
+<p>OK, I think that's confirmation.</p>
+
+<p>So, why are software patents bad? Or, &ldquo;computational idea
+patents&rdquo; as I think we should really call them, because each one
+is a monopoly on a computational idea. Most people, when you say
+&ldquo;software patents,&rdquo; they think it's a question of
+patenting a specific program. I'm sure all of you know that that's
+not what those patents do, but most people don't know that, so, to try
+to avoid misleading people, I call them &ldquo;computational idea
+patents.&rdquo;</p>
+
+<p>So, anyway, the reason these are bad is that they deny people the
+freedom to use their computers as they wish and do their computing as
+they wish, freedom that everyone must have. These patents put all
+software developers in danger, and their users as well. A danger that
+there is no reason we should stand for. So: we should protect
+software from patents. Software needs patent protection: protection
+from patents.</p>
+
+<p>But most people don't know enough about what patents do to
+appreciate why patents that can restrict software are so harmful.
+Most people think that patents are like copyrights, which is not true
+at all. The sum total of what they have in common is one sentence in
+the Constitution, and that similarity is so little and abstract it has
+nothing to do with the practical effects.</p>
+
+<p>So, the last thing we should ever do is use the term
+&ldquo;intellectual property&rdquo; that confuses not just these two
+laws, but a bunch of other unrelated, disparate laws, that don't even
+share one sentence in the Constitution with those two. So that term
+spreads confusion whenever it's used and about eight years ago I
+decided I should never use it and I have never used it since then.
+It's surprisingly easy to avoid, because in general there's no reason
+whatsoever to use it except that it's chic. And once you learn to
+resist that, it's as easy as pie, just talk about one law, and then
+you call that law by its name, and you're making a coherent, clear
+statement.</p>
+
+<p>So, I have to explain to people what patents do, and show them that
+it's not at all like what copyrights do. An analogy is a good way to
+do this. What can you say about programs? Well, they're large works,
+full of details that all have to work together to get the desired
+result. Well, what else is there like that? A novel, or a symphony.
+<span class="gnun-split"></span>
+So, imagine if the governments of Europe in the 1700s had had the
+cockeyed idea of promoting the progress of symphonic music with a
+system of &ldquo;musical idea patents.&rdquo; So, any musical idea
+statable in words could have been patented. A melodic motif could
+have been patented, or a series of chords, or a rhythmic pattern, or a
+pattern of repetitions in a movement, or the use of certain
+instruments while the rest of the orchestra is silent and a bunch of
+other musical ideas that I can't think of, but maybe a composer
+would.</p>
+
+<p>So, now imagine it's 1800 and you're Beethoven and you want to
+write a symphony. You're going to find that it's harder to write a
+symphony that you don't get sued for than to write a good symphony.
+Now, you'd probably have complained, and the patent holders would have
+said &ldquo;Oh, Beethoven, you're just jealous because we had these
+ideas before you. Why don't you go think of some ideas of your
+own?&rdquo;<span class="gnun-split"></span>
+Of course, Beethoven is considered a great composer
+because he had lots of new ideas, and not only that, he knew how to
+use them effectively. And that is: combined with lots of familiar
+ideas, so that his pieces were merely shocking for a while, but people
+could get used to them. They were not so alien and incomprehensible
+that they got rejected. They shocked people for a while, people got
+used to them, and now we don't see what's shocking any more, because
+we're used to those ideas. Well, that's the proof that he used those
+ideas well.</p>
+
+<p>So, the idea that anyone could, or should have to, reinvent music
+from zero, is absurd. Not even a Beethoven could do that, and it
+would be silly to ask someone to try. It's the same with computing.
+Just as a symphony implements many musical ideas together, but the
+hard part is not picking a bunch of ideas. The hard part is
+implementing them together with notes. It's the same with software.
+A large program will implement thousands of ideas together. But the
+hard part is not picking some ideas. It's easy to pick some ideas.
+What's hard is to implement them all together and make it work
+well.</p>
+
+<p>So &ldquo;computational idea patents&rdquo; obstruct the hard and
+big job by promoting resources that we get plenty of anyways. So it's
+a misconceived system. Designed to give us help we don't want at the
+cost of tremendous problems.</p>
+
+<p>So what we need is to get rid of the problem. What is the problem?
+The problem is: software developers and their users are threatened by
+patents. They are in danger. How can you prevent that? Well, one
+way is: don't issue patents that could affect software. That solution
+works if you apply it from the beginning. If a country never issues
+such patents, then its patent system doesn't attack software. OK,
+it's a good solution. But it's not applicable if a country has
+already issued hundreds of thousands of software patents.</p>
+
+<p>Now, I've proposed that constitutions should explicitly say that
+patent privileges can be reduced just as they can be increased. That
+they are not in any sense somebody's property; they are privileges
+given out by the government which can be changed at will. After all,
+if you allow the government by legislation to increase them, it's
+absurd to make this a one-way ratchet. But that's not in the US
+Constitution.</p>
+
+<p>So, what can we do? Well, we can ask courts to rule that all those
+patents that restrict software were invalid from the beginning and
+always have been invalid, and that gets rid of them all. However,
+that's not something that people can lobby for. It's not something we
+can say to officials, &ldquo;do this because we want you
+to.&rdquo;</p>
+
+<p>So, if we're going to look for a solution that we can get
+implemented, what is there? Well, the only way I can see is to
+legislate that software is a safe harbor. If it's software, then
+you're safe. Circuits to do the same computation would be covered by
+a patent, but if it's software, then you're safe. But what does that
+mean? What does it mean for something to be software? Well, it runs
+on a general purpose, universal machine. So first you make a
+universal machine and then you put in the program to say what it
+should do. Well, if the machine's only function is to be universal,
+then the program is all that implements any specific, patented
+idea.</p>
+
+<p>So, that's the case I want to get at, and I'm trying to separate it
+from a case like that in <cite>Diamond vs. Diehr</cite> where there
+was a patent for a system, a method of curing rubber. The
+implementation involved a computer, but it also involved special
+purpose hardware, not a general purpose universal machine, and that
+special purpose hardware was crucial to carrying out the patented
+technique.<span class="gnun-split"></span>
+It wasn't actually a software technique. And, actually, I
+read an article by Pamela Samuelson arguing that the CAFC twisted that
+decision and basically got the quantifiers in the wrong order. That
+the Supreme Court said, &ldquo;the fact that there's a computer in
+there somewhere doesn't automatically make it non-patentable,&rdquo;
+and the CAFC twisted that into &ldquo;the computer makes it
+patentable.&rdquo;</p>
+
+<p>Anyway, we might have some hope with the courts, but I'm proposing
+a method that will separate the cases that we must protect from
+non-computational idea patents that affect systems that might be
+implemented with a computer in there somewhere. The precise words to
+use? Well, the best I could come up with was: &ldquo;software running
+on generally used computing hardware.&rdquo; We certainly want things
+like smartphones to be covered; we don't want it to exclude anything
+that has any kind of special-purpose hardware in there.
+<span class="gnun-split"></span>The portable
+phone obviously has specialised hardware to talk to the phone network,
+but that shouldn't automatically mean that if it's running on a
+portable phone, it's vulnerable to patents. Because that is a general
+purpose computer and people use it for all sorts of things. But my
+words, &ldquo;generally used computing hardware,&rdquo; they may not
+be the best possible words. This is a subject that I think calls for
+study, because we've got to look at each possible wording that might
+be used and see which cases would be protected from patents and which
+would be exposed to come up with the right method.</p>
+
+<p>Now, every time I suggest a method to solve this problem, the first
+thing people try to look for is how to half solve it instead. The
+idea of really solving the problem shocks people because it strikes
+them as radical. They think &ldquo;I can't advocate something so
+radical as to really solve this whole problem. I've got to look for
+some partial solution that will only protect some software
+developers.&rdquo;<span class="gnun-split"></span>
+Well, that's a mistake. It's a mistake a) because
+it wouldn't do the whole job, but b) because it would be harder to get
+it passed. There are lots of software developers and they are all
+threatened and if we propose to protect them all, they will all have a
+reason to support it. But if we propose to only protect some of them,
+the rest will say &ldquo;well, this doesn't do me any good, why should
+I care?&rdquo;</p>
+
+<p>So, let's propose a real solution. And, besides, partial solutions
+tend to be vulnerable to the problem that Boldrin and Levine have
+written about very effectively, that it's easy for the pressures for
+patents to stretch the boundaries if you give them any kind of
+boundary that they can stretch. And this, by the way, is another
+advantage of applying a change to suing people, rather than to what's
+patentable. Because there, the criteria are just &ldquo;what kind of
+situation is this?&rdquo;
+<span class="gnun-split"></span>
+It's harder to stretch those, and if they
+tried, it would always be in a case against somebody who's going to be
+fighting not to stretch it. So it's less vulnerable to being
+distorted from an intended restriction of substance into an actual
+requirement of form of patent applications, which tends to happen to
+any kind of requirement about what patent applications have to look
+like.</p>
+
+<p>So, there I go.</p>
+
+<p>[applause]</p>
+
+<p><b>Andrew Chen:</b> Thank you, Dr Stallman.</p>
+
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+<p class="unprintable">Updated:
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