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diff --git a/talermerchantdemos/blog/articles/scrap1_24.html b/talermerchantdemos/blog/articles/scrap1_24.html new file mode 100644 index 0000000..8d27662 --- /dev/null +++ b/talermerchantdemos/blog/articles/scrap1_24.html @@ -0,0 +1,289 @@ +<!-- This is the second edition of Free Software, Free Society: Selected Essays of Richard M. Stallman. + +Free Software Foundation + +51 Franklin Street, Fifth Floor + +Boston, MA 02110-1335 +Copyright C 2002, 2010 Free Software Foundation, Inc. +Verbatim copying and distribution of this entire book are permitted +worldwide, without royalty, in any medium, provided this notice is +preserved. Permission is granted to copy and distribute translations +of this book from the original English into another language provided +the translation has been approved by the Free Software Foundation and +the copyright notice and this permission notice are preserved on all +copies. + +ISBN 978-0-9831592-0-9 +Cover design by Rob Myers. + +Cover photograph by Peter Hinely. + --> + + + <a name="Software-Patents-and-Literary-Patents"> + </a> + <h1 class="chapter"> + 24. Software Patents and Literary Patents + </h1> + <a name="index-patents_002c-analogy-between-literary-and-software"> + </a> + <a name="index-Hugo_002c-Victor"> + </a> + <a name="index-patents_002c-proposed-European-Union-software-patents-directive-1"> + </a> + <a name="index-European-Union_002c-proposed-European-Union-software-patents-directive-1"> + </a> + <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 (“except for some details”)—which +is not the case. For instance, when I publicly asked + <a name="index-Devedjian_002c-Minister-Patrick"> + </a> + Patrick +Devedjian, then Minister for Industry in + <a name="index-France-1"> + </a> + 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 “intellectual property” promotes this confusion—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> + <a name="index-Les-Miserables_002c-Victor-Hugo"> + </a> + <p> + Consider Victor Hugo’s novel + <cite> + Les Misérables. + </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 +Misérables, + </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> + <a name="index-Valjean_002c-literary-character-Jean-_0028see-also-Les-Miserables_0029"> + </a> + <p> + If such a patent had existed in 1862 when + <cite> + Les Misérables + </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—in effect, censored—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 Misérables + </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 Misérables. + </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 “Jean Valjean,” 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—for +instance, the + <a name="index-European-Patent-Office"> + </a> + 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 Misérables + </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 +Misérables. + </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—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—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. + <a name="index-Valjean_002c-literary-character-Jean-_0028see-also-Les-Miserables_0029-1"> + </a> + <a name="index-Les-Miserables_002c-Victor-Hugo-1"> + </a> + <a name="index-Hugo_002c-Victor-1"> + </a> + </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 + <a name="index-Microsoft_002c-OOXML-format-_0028see-also-patents_0029"> + </a> + OOXML format. + <a name="index-MPEG_002d2"> + </a> + 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 + <a name="index-kernel_002c-Linux-2"> + </a> + <a name="index-Linux-kernel-2"> + </a> + 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 1 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> + <a name="index-call-to-action_002c-do-not-authorize-software-patents"> + </a> + <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 “software per se” 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. + <a name="index-patents_002c-analogy-between-literary-and-software-1"> + </a> + </p> + <hr size="2"/> + |