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+<!--#include virtual="/server/header.html" -->
+<!-- Parent-Version: 1.77 -->
+<title>Software Patents and Literary Patents - GNU Project -
+Free Software Foundation</title>
+<!--#include virtual="/philosophy/po/software-literary-patents.translist" -->
+<!--#include virtual="/server/banner.html" -->
+<h2>Software Patents and Literary Patents</h2>
+
+<p>by <strong><a href="http://stallman.org/">Richard Stallman</a></strong></p>
+
+<p>
+<em>The first version of this article was published in
+<cite>The Guardian</cite>, of London, on June 23, 2005. It focused on
+the proposed European software patent directive.</em></p>
+
+<p>
+When politicians consider the question of software patents, they are
+usually voting blind; not being programmers, they don't understand
+what software patents really do. They often think patents are similar
+to copyright law (&ldquo;except for some details&rdquo;)&mdash;which
+is not the case. For instance, when I publicly asked Patrick
+Devedjian, then Minister for Industry in France, how France would vote
+on the issue of software patents, Devedjian responded with an
+impassioned defense of copyright law, praising Victor Hugo for his
+role in the adoption of copyright. (The misleading
+term <a href="/philosophy/not-ipr.html"> &ldquo;intellectual
+property&rdquo;</a> promotes this confusion&mdash;one of the reasons it
+should never be used.)
+</p>
+
+<p>
+Those who imagine effects like those of copyright law cannot grasp the
+disastrous effects of software patents. We can use Victor Hugo as an
+example to illustrate the difference.
+</p>
+
+<p>
+A novel and a modern complex program have certain points in common:
+each one is large, and implements many ideas in combination. So let's
+follow the analogy, and suppose that patent law had been applied to
+novels in the 1800s; suppose that states such as France had permitted
+the patenting of literary ideas. How would this have affected Victor
+Hugo's writing? How would the effects of literary patents compare
+with the effects of literary copyright?
+</p>
+
+<p>
+Consider Victor Hugo's novel <cite> Les Mis&eacute;rables</cite>. Since he
+wrote it, the copyright belonged only to him. He
+did not have to fear that some stranger could sue him for copyright
+infringement and win. That was impossible, because copyright covers
+only the details of a work of authorship, not the ideas embodied in
+them, and it only restricts copying. Hugo had not copied <cite>Les
+Mis&eacute;rables</cite>, so he was not in danger from copyright.
+</p>
+
+<p>
+Patents work differently. Patents cover ideas; each patent is a
+monopoly on practicing some idea, which is described in the patent
+itself. Here's one example of a hypothetical literary patent:
+</p>
+
+<ul>
+ <li>Claim 1: a communication process that represents in the mind of a
+ reader the concept of a character who has been in jail for a long
+ time and becomes bitter towards society and humankind.</li>
+
+ <li>Claim 2: a communication process according to claim 1, wherein
+ said character subsequently finds moral redemption through the
+ kindness of another.</li>
+
+ <li>Claim 3: a communication process according to claims 1 and 2,
+ wherein said character changes his name during the story.</li>
+</ul>
+
+<p>
+If such a patent had existed in 1862 when <cite>Les Mis&eacute;rables</cite> was
+published, the novel would have conflicted with all three claims,
+since all these things happened to Jean Valjean in the novel. Victor
+Hugo could have been sued, and if sued, he would have lost. The novel
+could have been prohibited&mdash;in effect, censored&mdash;by the
+patent holder.
+</p>
+
+<p>
+Now consider this hypothetical literary patent:
+</p>
+
+<ul>
+ <li>Claim 1: a communication process that represents in the mind
+ of a reader the concept of a character who has been in jail for a long
+ time and subsequently changes his name.</li>
+</ul>
+
+<p>
+<cite>Les Mis&eacute;rables</cite> would have been prohibited by that patent too,
+because this description too fits the life story of Jean Valjean. And
+here's another hypothetical patent:
+</p>
+
+<ul>
+ <li>Claim 1: a communication process that represents in the mind
+of a reader the concept of a character who finds moral redemption and
+then changes his name.</li>
+</ul>
+
+<p>
+Jean Valjean would have been forbidden by this patent too.
+</p>
+
+<p>
+All three patents would cover, and prohibit, the life story of this one
+character. They overlap, but they do not precisely duplicate each other,
+so they could all be valid simultaneously; all three patent holders
+could have sued Victor Hugo. Any one of them could have prohibited
+publication of <cite>Les Mis&eacute;rables</cite>.
+</p>
+
+<p>
+This patent also could have been violated:
+</p>
+
+<ul>
+ <li>Claim 1: a communication process that presents a character
+whose given name matches the last syllable of his family name.</li>
+</ul>
+
+<p>
+through the name &ldquo;Jean Valjean&rdquo;, but at least this patent
+would have been easy to avoid.
+</p>
+
+<p>
+You might think that these ideas are so simple that no patent office
+would have issued them. We programmers are often amazed by the
+simplicity of the ideas that real software patents cover&mdash;for
+instance, the European Patent Office has issued a patent on the
+progress bar, and a patent on accepting payment via credit cards.
+These patents would be laughable if they were not so dangerous.
+</p>
+
+<p>
+Other aspects of <cite>Les Mis&eacute;rables</cite> could also have
+run afoul of
+patents. For instance, there could have been a patent on a
+fictionalized portrayal of the Battle of Waterloo, or a patent on
+using Parisian slang in fiction. Two more lawsuits. In fact, there
+is no limit to the number of different patents that might have been
+applicable for suing the author of a work such as <cite>Les
+Mis&eacute;rables</cite>. All the patent holders would say they deserved a
+reward for the literary progress that their patented ideas represent,
+but these obstacles would not promote progress in literature, they
+would only obstruct it.
+</p>
+
+<p>
+However, a very broad patent could have made all these issues
+irrelevant. Imagine a patent with broad claims like these:
+</p>
+
+<ul>
+ <li>A communication process structured with narration that continues
+through many pages.</li>
+ <li>A narration structure sometimes resembling a fugue or
+improvisation.</li>
+ <li>Intrigue articulated around the confrontation of specific
+characters, each in turn setting traps for the others.</li>
+ <li>Narration that presents many layers of society.</li>
+ <li>Narration that shows the wheels of hidden conspiracy.</li>
+ </ul>
+
+ <p> Who would the patent holders have been? They could have been
+other novelists, perhaps Dumas or Balzac, who had written such
+novels&mdash;but not necessarily. It isn't required to write a
+program to patent a software idea, so if our hypothetical literary
+patents follow the real patent system, these patent holders would not
+have had to write novels, or stories, or anything&mdash;except patent
+applications. Patent parasite companies, businesses that produce
+nothing except threats and lawsuits, are booming nowadays.</p>
+
+ <p> Given these broad patents, Victor Hugo would not have reached
+the point of asking what patents might get him sued for using the
+character of Jean Valjean, because he could not even have considered
+writing a novel of this kind.</p>
+
+<p>This analogy can help nonprogrammers see what software patents
+do. Software patents cover features, such as defining abbreviations in
+a word processor, or natural order recalculation in a spreadsheet.
+Patents cover algorithms that programs need to use. Patents cover
+aspects of file formats, such as Microsoft's OOXML format. MPEG 2
+video format is covered by 39 different US patents.</p>
+
+<p>Just as one novel could run afoul of many different literary patents at
+once, one program can be prohibited by many different patents at once.
+It is so much work to identify all the patents that appear to apply
+to a large program that only one such study has been done. A 2004 study of
+Linux, the kernel of the GNU/Linux operating system, found 283
+different US software patents that seemed to cover it. That is to
+say, each of these 283 different patents forbids some computational
+process found somewhere in the thousands of pages of source code of
+Linux. At the time, Linux was around one percent of the whole
+GNU/Linux system. How many patents might there be that a distributor
+of the whole system could be sued under?</p>
+
+<p>
+The way to prevent software patents from bollixing software
+development is simple: don't authorize them. This ought to be easy,
+since most patent laws have provisions against software patents. They
+typically say that &ldquo;software per se&rdquo; cannot be patented.
+But patent offices around the world are trying to twist the words and
+issuing patents on the ideas implemented in programs. Unless this is
+blocked, the result will be to put all software developers in danger.
+</p>
+
+<hr />
+<blockquote id="fsfs"><p class="big">This essay 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 &amp; GNU inquiries to
+<a href="mailto:gnu@gnu.org">&lt;gnu@gnu.org&gt;</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">&lt;webmasters@gnu.org&gt;</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. However, we are not exempt from imperfection.
+ Please send your comments and general suggestions in this regard
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+Please see the <a
+href="/server/standards/README.translations.html">Translations
+README</a> for information on coordinating and submitting translations
+of this article.</p>
+</div>
+
+<!-- Regarding copyright, in general, standalone pages (as opposed to
+ files generated as part of manuals) on the GNU web server should
+ be under CC BY-ND 3.0 US. Please do NOT change or remove this
+ without talking with the webmasters or licensing team first.
+ Please make sure the copyright date is consistent with the
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+
+ If you wish to list earlier years, that is ok too.
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+
+ There is more detail about copyright years in the GNU Maintainers
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+
+<p>Copyright &copy; 2005, 2007, 2008 Richard Stallman</p>
+
+<p>This page is licensed under a <a rel="license"
+href="http://creativecommons.org/licenses/by-nd/3.0/us/">Creative
+Commons Attribution-NoDerivs 3.0 United States License</a>.</p>
+
+<!--#include virtual="/server/bottom-notes.html" -->
+
+<p class="unprintable">Updated:
+<!-- timestamp start -->
+$Date: 2014/04/12 12:40:46 $
+<!-- timestamp end -->
+</p>
+</div>
+</div>
+</body>
+</html>