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diff --git a/talermerchantdemos/blog/articles/en/rms-patents.html b/talermerchantdemos/blog/articles/en/rms-patents.html new file mode 100644 index 0000000..9fa351a --- /dev/null +++ b/talermerchantdemos/blog/articles/en/rms-patents.html @@ -0,0 +1,305 @@ +<!--#include virtual="/server/header.html" --> +<!-- 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> (<a +href="//audio-video.gnu.org/video/keynote-what-is-the-problem.webm">video</a>, + <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, “computational idea +patents” as I think we should really call them, because each one +is a monopoly on a computational idea. Most people, when you say +“software patents,” 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 “computational idea +patents.”</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 +“intellectual property” 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 “musical idea patents.” 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 “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?”<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 “computational idea patents” 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, “do this because we want you +to.”</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, “the fact that there's a computer in +there somewhere doesn't automatically make it non-patentable,” +and the CAFC twisted that into “the computer makes it +patentable.”</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: “software running +on generally used computing hardware.” 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, “generally used computing hardware,” 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 “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.”<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 “well, this doesn't do me any good, why should +I care?”</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 “what kind of +situation is this?” +<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> + +</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. 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