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+<!-- 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"/>
+