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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="The-Danger-of-Software-Patents">
- </a>
- <h1 class="chapter">
- 25. The Danger of Software Patents
- </h1>
- <blockquote class="smallquotation">
- <p>
- This is an unedited transcript of the talk presented by Richard Stallman on 8 October 2009 at Victoria University of Wellington, in Wellington, New Zealand.
- </p>
- </blockquote>
- <p>
- I’m most known for starting the free software movement and leading
-development of the
- <a name="index-GNU-_0028see-also-both-software-and-GNU_0029-5">
- </a>
- GNU operating system—although most of the people
-who use the system mistakenly believe it’s Linux and think it was
-started by somebody else a decade later. But I’m not going to be
-speaking about any of that today. I’m here to talk about a legal
-danger to all software developers, distributors, and users: the danger
-of patents—on computational ideas, computational techniques, an idea
-for something you can do on a computer.
- </p>
- <a name="index-patents_002c-difference-between-copyrights-and">
- </a>
- <p>
- Now, to understand this issue, the first thing you need to realize is
-that patent law has nothing to do with copyright law—they’re totally
-different. Whatever you learn about one of them, you can be sure it
-doesn’t apply to the other.
- </p>
- <p>
- So, for example, any time a person makes a statement about
- <a name="index-_0060_0060intellectual-property_002c_0027_0027-bias-and-fallacy-of-term-_0028see-also-ownership_0029-8">
- </a>
- “intellectual property,” that’s spreading confusion, because it’s
-lumping together not only these two laws but also at least a dozen
-others. They’re all different, and the result is any statement which
-purports to be about “intellectual property” is pure confusion—either
-the person making the statement is confused, or the person is trying
-to confuse others. But either way, whether it’s accidental or
-malicious, it’s confusion.
- </p>
- <p>
- Protect yourself from this confusion by rejecting any statement which
-makes use of that term. The only way to make thoughtful comments and
-think clear thoughts about any one of these laws is to distinguish
-it first from all the others, and talk or think about one particular
-law, so that we can understand what it actually does and then form
-conclusions about it. So I’ll be talking about patent law, and what
-happens in those countries which have allowed patent law to restrict
-software.
- </p>
- <p>
- So, what does a patent do? A patent is an explicit, government-issued
-monopoly on using a certain idea. In the patent there’s a part called
-the claims, which describe exactly what you’re not allowed to do
-(although they’re written in a way you probably can’t understand). It’s
-a struggle to figure out what those prohibitions actually mean, and
-they may go on for many pages of fine print.
- </p>
- <p>
- So the patent typically lasts for 20 years, which is a fairly long
-time in our field. Twenty years ago there was no World Wide Web—a
-tremendous amount of the use of computers goes on in an area which
-wasn’t even possible to propose 20 years ago. So of course everything
-that people do on it is something that’s new since 20 years ago—at
-least in some aspect it is new. So if patents had been applied for
-we’d be prohibited from doing all of it, and we may be prohibited from
-doing all of it in countries that have been foolish enough to have
-such a policy.
- </p>
- <p>
- Most of the time, when people describe the function of the patent
-system, they have a vested interest in the system. They may be patent
-lawyers, or they may work in the Patent Office, or they may be in the
-patent office of a megacorporation, so they want you to like the
-system.
- </p>
- <a name="index-Economist">
- </a>
- <p>
- The
- <cite>
- Economist
- </cite>
- once referred to the patent system as “a time-consuming
-lottery.” If you’ve ever seen publicity for a lottery, you understand
-how it works: they dwell on the very unlikely probability of winning,
-and they don’t talk about the overwhelming likelihood of losing. In
-this way, they intentionally and systematically present a biased
-picture of what’s likely to happen to you, without actually lying
-about any particular fact.
- </p>
- <p>
- It’s the same way for the publicity for the patent system: they talk
-about what it’s like to walk down the street with a patent in your
-pocket—or first of all, what it’s like to get a patent, then what
-it’s like to have a patent in your pocket, and every so often you can
-pull it out and point it at somebody and say, “Give me your money.”
- </p>
- <p>
- To compensate for their bias, I’m going to describe it from the other
-side, the victim side—what it’s like for people who want to develop
-or distribute or run software. You have to worry that any day someone
-might walk up to you and point a patent at you and say, “Give me your
-money.”
- </p>
- <p>
- If you want to develop software in a country that allows software
-patents, and you want to work with patent law, what will you have to
-do?
- </p>
- <p>
- You could try to make a list of all the ideas that one might be able
-to find in the program that you’re about to write, aside from the fact
-that you don’t know that when you start writing the program. [But] even
-after you finish writing the program you wouldn’t be able to make such
-a list.
- </p>
- <p>
- The reason is…in the process
-you conceived of it in one particular way—you’ve got a mental
-structure to apply to your design. And because of that, it will block
-you from seeing other structures that somebody might use to understand
-the same program—because you’re not coming to it fresh; you already
-designed it with one structure in mind. Someone else who sees it for
-the first time might see a different structure, which involves
-different ideas, and it would be hard for you to see what those other
-ideas are. But nonetheless they’re implemented in your program, and
-those patents could prohibit your program, if those ideas are
-patented.
- </p>
- <p>
- For instance, suppose there were graphical-idea patents and you wanted
-to draw a square. Well, you would realize that if there was a patent
-on a bottom edge, it would prohibit your square. You could put “bottom
-edge” on the list of all ideas implemented in your drawing. But you
-might not realize that somebody else with a patent on bottom corners
-could sue you easily also, because he could take your drawing and turn
-it by 45 degrees. And now your square is like this, and it has a
-bottom corner.
- </p>
- <p>
- So you couldn’t make a list of all the ideas which, if patented, could
-prohibit your program.
- </p>
- <p>
- What you might try to do is find out all the ideas that are
-patented that might be in your program. Now you can’t do that
-actually, because patent applications are kept secret for at least
-18 months; and the result is the Patent Office could be
-considering now whether to issue a patent, and they won’t tell you.
-And this is not just an academic, theoretical possibility.
- </p>
- <a name="index-Compress">
- </a>
- <p>
- For instance, in 1984 the Compress program was written, a program for
-compressing files using the
- <a name="index-LZW-_0028Lempel_002dZiv_002dWelch_0029-data-compression-algorithm-_0028see-also-patents_0029-2">
- </a>
- <a name="index-patents_002c-LZW-data-compression-algorithm-1">
- </a>
- data compression algorithm, and at
-that time there was no patent on that algorithm for compressing
-files. The author got the algorithm from an article in a journal. That
-was when we thought that the purpose of computer science journals was
-to publish algorithms so people could use them.
- </p>
- <p>
- He wrote this program, he released it, and in 1985 a patent was issued
-on that algorithm. But the patent holder was cunning and didn’t
-immediately go around telling people to stop using it. The patent
-holder figured, “Let’s let everybody dig their grave deeper.” A few
-years later they started threatening people; it became clear we
-couldn’t use Compress, so I asked for people to suggest other
-algorithms we could use for compressing files.
- </p>
- <p>
- And somebody wrote and said, “I developed another data compression
-algorithm that works better, I’ve written a program, I’d like to give
-it to you.” So we got ready to release it, and a week before it was
-ready to be released, I read in the
- <a name="index-New-York-Times-1">
- </a>
- <cite>
- New York Times
- </cite>
- weekly patent
-column, which I rarely saw—it’s a couple of times a year I might see
-it—but just by luck I saw that someone had gotten a patent for
-“inventing a new method of compressing data.” And so I said we had
-better look at this, and sure enough it covered the program we were
-about to release. But it could have been worse: the patent could have
-been issued a year later, or two years later, or three years later, or
-five years later.
- </p>
- <a name="index-gzip-1">
- </a>
- <p>
- Anyway, someone else came up with another, even better compression
-algorithm, which was used in the program gzip, and just about
-everybody who wanted to compress files switched to gzip, so it sounds
-like a happy ending. But you’ll hear more later. It’s not entirely
-so happy.
- </p>
- <p>
- So, you can’t find out about the patents that are being considered
-even though they may prohibit your work once they come out, but you
-can find out about the already issued patents. They’re all published
-by the Patent Office. The problem is you can’t read them all, because
-there are too many of them.
- </p>
- <p>
- In the US I believe there are hundreds of thousands of
-software patents; keeping track of them would be a tremendous job. So
-you’re going to have to search for relevant patents. And you’ll find a
-lot of relevant patents, but you won’t necessarily find them all.
- </p>
- <p>
- For instance, in the 80s and 90s, there was a patent on “natural order
-recalculation” in spreadsheets. Somebody once asked me for a copy of
-it, so I looked in our computer file which lists the patent numbers.
-And then I pulled out the drawer to get the paper copy of this patent
-and xeroxed it and sent it to him. And when he got it, he said, “I
-think you sent me the wrong patent. This is something about
-compilers.” So I thought maybe our file has the wrong number in it.
-I looked in it again, and sure enough it said, “A method for compiling
-formulas into object code.” So I started to read it to see if it was
-indeed the wrong patent. I read the claims, and sure enough it was
-the natural order recalculation patent, but it didn’t use those terms.
-It didn’t use the term “spreadsheet.” In fact, what the patent
-prohibited was dozens of different ways of implementing topological
-sort—all the ways they could think of. But I don’t think it used the
-term “topological sort.”
- </p>
- <p>
- So if you were writing a spreadsheet and you tried to find relevant
-patents by searching, you might have found a lot of patents. But you
-wouldn’t have found this one until you told somebody, “Oh, I’m working
-on a spreadsheet,” and he said, “Oh, did you know those other
-companies that are making spreadsheets are getting sued?” Then you
-would have found out.
- </p>
- <p>
- Well, you can’t find all the patents by searching, but you can find a
-lot of them. And then you’ve got to figure out what they mean, which
-is hard, because patents are written in tortuous legal language which
-is very hard to understand the real meaning of. So you’re going to
-have to spend a lot of time talking with an expensive lawyer
-explaining what you want to do in order to find out from the lawyer
-whether you’re allowed to do it.
- </p>
- <a name="index-Heckel_002c-Paul">
- </a>
- <p>
- Even the patent holders often can’t recognize just what their patents
-mean. For instance, there’s somebody named Paul Heckel who released a
-program for displaying a lot of data on a small screen, and based on a
-couple of the ideas in that program he got a couple of patents.
- </p>
- <p>
- I once tried to find a simple way to describe what claim 1 of one of
-those patents covered. I found that I couldn’t find any simpler way
-of saying it than what was in the patent itself; and that sentence, I
-couldn’t manage to keep it all in my mind at once, no matter how hard
-I tried.
- </p>
- <a name="index-HyperCard">
- </a>
- <p>
- And Heckel couldn’t follow it either, because when he saw HyperCard,
-all he noticed was it was nothing like his program. It didn’t occur to
-him that the way his patent was written it might prohibit HyperCard;
-but his lawyer had that idea, so he threatened
- <a name="index-Apple-_0028see-also-DRM_0029-1">
- </a>
- Apple. And then he
-threatened Apple’s customers, and eventually Apple made a settlement
-with him which is secret, so we don’t know who really won. And this is
-just an illustration of how hard it is for anybody to understand what
-a patent does or doesn’t prohibit.
- </p>
- <p>
- In fact, I once gave this speech and Heckel was in the audience. And
-at this point he jumped up and said, “That’s not true, I just didn’t
-know the scope of my protection.” And I said, “Yeah, that’s what I
-said,” at which point he sat down and that was the end of my
-experience being heckled by Heckel. If I had said no, he probably
-would have found a way to argue with me.
- </p>
- <p>
- Anyway, after a long, expensive conversation with a lawyer, the
-lawyer will give you an answer like this:
- </p>
- <blockquote class="smallquotation">
- <p>
- If you do something in this area, you’re almost certain to lose a
-lawsuit; if you do something in this area, there’s a considerable
-chance of losing a lawsuit; and if you really want to be safe you’ve
-got to stay out of this area. But there’s a sizeable element of chance
-in the outcome of any lawsuit.
- </p>
- </blockquote>
- <p>
- So now that you have clear, predictable rules for doing business, what
-are you actually going to do? Well, there are three things that you
-could do to deal with the issue of any particular patent. One is to
-avoid it, another is to get a license for it, and the third is to
-invalidate it. So I’ll talk about these one by one.
- </p>
- <p>
- First, there’s the possibility of avoiding the patent, which means,
-don’t implement what it prohibits. Of course, if it’s hard to tell
-what it prohibits, it might be hard to tell what would suffice to
-avoid it.
- </p>
- <a name="index-Sun-Microsystems-1">
- </a>
- <a name="index-Kodak">
- </a>
- <p>
- A couple of years ago Kodak sued Sun [for] using a patent for something
-having to do with object-oriented programming, and Sun didn’t think it
-was infringing that patent. But the court decided it was; and when
-other people look at that patent they haven’t the faintest idea
-whether that decision was right or not. No one can tell what that
-patent does or doesn’t cover, but Sun had to pay hundreds of millions
-of dollars because of violating a completely incomprehensible law.
- </p>
- <p>
- Sometimes you can tell what you need to avoid, and sometimes what
-you need to avoid is an algorithm.
- </p>
- <a name="index-FFT-_0028fast-Fourier-transform_0029">
- </a>
- <p>
- For instance, I saw a patent for something like the fast Fourier
-transform, but it ran twice as fast. Well, if the ordinary FFT is fast
-enough for your application then that’s an easy way to avoid this
-other one. And most of the time that would work. Once in a while you
-might be trying to do something where it runs doing FFT all the time,
-and it’s just barely fast enough using the faster algorithm. And then
-you can’t avoid it, although maybe you could wait a couple of years
-for a faster computer. But that’s going to be rare. Most of the time
-that patent will to be easy to avoid.
- </p>
- <a name="index-LZW-_0028Lempel_002dZiv_002dWelch_0029-data-compression-algorithm-_0028see-also-patents_0029-3">
- </a>
- <a name="index-patents_002c-LZW-data-compression-algorithm-2">
- </a>
- <p>
- On the other hand, a patent on an algorithm may be impossible to
-avoid. Consider the LZW data compression algorithm. Well, as I
-explained, we found a better data compression algorithm, and everybody
-who wanted to compress files switched to the program gzip which used
-the better algorithm. And the reason is, if you just want to compress
-the file and uncompress it later, you can tell people to use this
-program to uncompress it; then you can use any program with any
-algorithm, and you only care how well it works.
- </p>
- <a name="index-PostScript-language">
- </a>
- <p>
- But LZW is used for other things, too; for instance the PostScript
-language specifies operators for LZW compression and LZW
-uncompression. It’s no use having another, better algorithm because
-it makes a different format of data. They’re not interoperable. If you
-compress it with the gzip algorithm, you won’t be able to uncompress
-it using LZW. So no matter how good your other algorithm is, and no
-matter what it is, it just doesn’t enable you to implement PostScript
-according to the specs.
- </p>
- <p>
- But I noticed that users rarely ask their printers to compress
-things. Generally the only thing they want their printers to do is to
-uncompress; and I also noticed that both of the patents on the LZW
-algorithm were written in such a way that if your system can only
-uncompress, it’s not forbidden. These patents were written so that
-they covered compression, and they had other claims covering both
-compression and uncompression; but there was no claim covering only
-uncompression. So I realized that if we implement only the
-uncompression for LZW, we would be safe. And although it would not
-satisfy the specification, it would please the users sufficiently; it
-would do what they actually needed. So that’s how we barely squeaked
-by avoiding the two patents.
- </p>
- <a name="index-GIF-1">
- </a>
- <a name="index-PNG">
- </a>
- <p>
- Now there is gif format, for images. That uses the LZW algorithm
-also. It didn’t take long for people to define another image format,
-called png, which stands for “Png’s Not Gif.” I think it uses the
-gzip algorithm. And we started saying to people, “Don’t use gif
-format, it’s dangerous. Switch to png.” And the users said, “Well,
-maybe some day, but the browsers don’t implement it yet,” and the
-browser developers said, “We may implement it someday, but there’s not
-much demand from users.”
- <a name="index-gzip-2">
- </a>
- </p>
- <p>
- Well, it’s pretty obvious what’s going on—gif was a de facto
-standard. In effect, asking people to switch to a different format,
-instead of their de facto standard, is like asking everyone in New
-Zealand to speak Hungarian. People will say, “Well, yeah, I’ll learn to
-speak it after everyone else does.” And so we never succeeded in
-asking people to stop using gif, even though one of those patent
-holders was going around to operators of web sites,
-threatening to sue them unless they could prove that all of the gifs on
-the site were made with authorized, licensed software.
- </p>
- <a name="index-JPEG">
- </a>
- <p>
- So gif was a dangerous trap for a large part of our community. We
-thought we had an alternative to gif format, namely jpeg, but then
-somebody said, “I was just looking through my portfolio of patents”—I
-think it was somebody that just bought patents and used them to
-threaten people—and he said, “and I found that one of them covers jpeg
-format.”
- </p>
- <p>
- Well, jpeg was not a de facto standard, it’s an official standard,
-issued by a standards committee; and the committee had a lawyer too.
-Their lawyer said he didn’t think that this patent actually covered
-jpeg format.
- </p>
- <p>
- So who’s right? Well, this patent holder sued a bunch of companies,
-and if there was a decision, it would have said who was right. But I
-haven’t heard about a decision; I’m not sure if there ever was one. I
-think they settled, and the settlement is almost certainly secret,
-which means that it didn’t tell us anything about who’s right.
- </p>
- <p>
- These are fairly lightweight cases: one patent on jpeg, two patents
-on the LZW algorithm used in gif. Now you might wonder how come there
-are two patents on the same algorithm? It’s not supposed to happen,
-but it did. And the reason is that the patent examiners can’t possibly
-take the time to study every pair of things they might need to study
-and compare, because they’re not allowed to take that much time. And
-because algorithms are just mathematics, there’s no way you can narrow
-down which applications and patents you need to compare.
- </p>
- <a name="index-patents_002c-LZW-data-compression-algorithm-3">
- </a>
- <a name="index-LZW-_0028Lempel_002dZiv_002dWelch_0029-data-compression-algorithm-_0028see-also-patents_0029-4">
- </a>
- <p>
- You see, in physical engineering fields, they can use the physical
-nature of what’s going on to narrow things down. For instance, in
-chemical engineering, they can say, “What are the substances going in?
-What are the substances coming out?” If two different [patent]
-applications are different in that way, then they’re not the same
-process so you don’t need to worry. But the same math can be
-represented in ways that can look very different, and until you study
-them both together, you don’t realize they’re talking about the same
-thing. And, because of this, it’s quite common to see the same thing
-get patented multiple times [in software].
- </p>
- <p>
- Remember that program that was killed by a patent before we released
-it? Well, that algorithm got patented twice also. In one little field
-we’ve seen it happen in two cases that we ran into—the same algorithm
-being patented twice. Well, I think my explanation tells you why that
-happens.
- </p>
- <p>
- But one or two patents is a lightweight case. What about
- <a name="index-MPEG_002d2-1">
- </a>
- mpeg2, the
-video format? I saw a list of over 70 patents covering that, and the
-negotiations to arrange a way for somebody to license all those
-patents took longer than developing the standard itself. The jpeg
-committee wanted to develop a follow-on standard, and they gave
-up. They said there were too many patents; there was no way to do it.
- <a name="index-JPEG-1">
- </a>
- </p>
- <p>
- Sometimes it’s a feature that’s patented, and the only way to avoid that
-patent is not to implement that feature. For instance, the users of
-the word processor
- <a name="index-Xywrite">
- </a>
- Xywrite once got a downgrade in the mail, which
-removed a feature. The feature was that you could define a list of
-abbreviations. For instance, if you define
- <a name="index-abbreviations_002c-patents-on">
- </a>
- <a name="index-patents_002c-on-abbreviations">
- </a>
- “exp” as an abbreviation
-for “experiment,” then if you type “exp-space” or “exp-comma,” the “exp”
-would change automatically to “experiment.”
- </p>
- <p>
- Then somebody who had a patent on this feature threatened them, and
-they concluded that the only thing they could do was to take the
-feature out. And so they sent all the users a downgrade.
- </p>
- <p>
- But they also contacted me, because my
- <a name="index-Emacs_002c-GNU-7">
- </a>
- <a name="index-GNU_002c-GNU-Emacs-7">
- </a>
- Emacs editor had a feature like
-that starting from the late 70s. And it was described in the Emacs
-manual, so they thought I might be able to help them invalidate that
-patent. Well, I’m happy to know I’ve had at least one patentable idea
-in my life, but I’m unhappy that someone else patented it.
- </p>
- <p>
- Fortunately, in fact, that patent was eventually invalidated, and
-partly on the strength of the fact that I had published using it
-earlier. But in the meantime they had had to remove this feature.
- </p>
- <p>
- Now, to remove one or two features may not be a disaster. But when
-you have to remove 50 features, you could do it, but people are likely
-to say, “This program’s no good; it’s missing all the features I want.”
-So it may not be a solution. And sometimes a patent is so broad that
-it wipes out an entire field, like the patent on public-key
-encryption, which in fact put public-key encryption basically off
-limits for about ten years.
- </p>
- <p>
- So that’s the option of avoiding the patent—often possible, but
-sometimes not, and there’s a limit to how many patents you can avoid.
- </p>
- <p>
- What about the next possibility, of getting a license for the patent?
- </p>
- <a name="index-games_002c-patents-and">
- </a>
- <p>
- Well, the patent holder may not offer you a license. It’s entirely up
-to him. He could say, “I just want to shut you down.” I once got a
-letter from somebody whose family business was making casino games,
-which were of course computerized, and he had been threatened by
-a patent holder who wanted to make his business shut down. He sent me
-the patent. Claim 1 was something like “a network with a multiplicity
-of computers, in which each computer supports a multiplicity of games,
-and allows a multiplicity of game sessions at the same time.”
- </p>
- <a name="index-universities-4">
- </a>
- <p>
- Now, I’m sure in the 1980s there was a university that set up a room
-with a network of workstations, and each workstation had some kind of
-windowing facility. All they had to do was to install multiple games
-and it would be possible to display multiple game sessions at
-once. This is so trivial and uninteresting that nobody would have
-bothered to publish an article about doing it. No one would have been
-interested in publishing an article about doing it, but it was worth
-patenting it. If it had occurred to you that you could get a monopoly
-on this trivial thing, then you could shut down your competitors with
-it.
- <a name="index-games_002c-patents-and-1">
- </a>
- </p>
- <p>
- But why does the Patent Office issue so many patents that seem absurd
-and trivial to us?
- </p>
- <p>
- It’s not because the patent examiners are stupid, it’s because they’re
-following a system, and the system has rules, and the rules lead to
-this result.
- </p>
- <p>
- You see, if somebody has made a machine that does something once, and
-somebody else designs a machine that will do the same thing, but N
-times, for us that’s a
- <tt>
- for
- </tt>
- -loop, but for the Patent Office that’s an
-invention. If there are machines that can do A, and there are
-machines that can do B, and somebody designs a machine that can do A
-or B, for us that’s an
- <tt>
- if-then-else
- </tt>
- statement, but for the Patent
-Office that’s an invention. So they have very low standards, and they
-follow those standards; and the result is patents that look absurd and
-trivial to us. Whether they’re legally valid I can’t say. But every
-programmer who sees them laughs.
- </p>
- <p>
- In any case, I was unable to suggest anything he could do to help
-himself, and he had to shut down his business. But most patent holders
-will offer you a license. It’s likely to be rather expensive.
- </p>
- <p>
- But there are some software developers that find it particularly easy
-to get licenses, most of the time. Those are the megacorporations. In
-any field the megacorporations generally own about half the patents,
-and they cross-license each other, and they can make anybody else
-cross-license if he’s really producing anything. The result is that
-they end up painlessly with licenses for almost all the patents.
- </p>
- <a name="index-IBM">
- </a>
- <a name="index-patents_002c-IBM-and">
- </a>
- <a name="index-Think-magazine">
- </a>
- <p>
- IBM wrote an article in its house magazine,
- <cite>
- Think
- </cite>
- magazine—I think
-it’s issue 5, 1990—about the benefit IBM got from its almost 9,000 US
-patents at the time (now it’s up to 45,000 or more). They said that
-one of the benefits was that they collected money, but the main
-benefit, which they said was perhaps an order of magnitude greater,
-was “getting access to the patents of others,” namely cross-licensing.
- </p>
- <p>
- What this means is since IBM, with so many patents, can make almost
-everybody give them a cross-license, IBM avoids almost all the grief
-that the patent system would have inflicted on anybody else. So that’s
-why IBM wants software patents. That’s why the megacorporations in
-general want software patents, because they know that by
-cross-licensing, they will have a sort of exclusive club on top of a
-mountain peak. And all the rest of us will be down here, and there’s
-no way we can get up there. You know, if you’re a genius, you might
-start up a small company and get some patents, but you’ll never get
-into IBM’s league, no matter what you do.
- </p>
- <p>
- Now a lot of companies tell their employees, “Get us patents so we can
-defend ourselves” and they mean, “use them to try to get
-cross-licensing,” but it just doesn’t work well. It’s not an effective
-strategy if you’ve got a small number of patents.
- </p>
- <p>
- Suppose you’ve got three patents. One points there, one points there,
-and one points there, and somebody over there points a patent at you.
-Well, your three patents don’t help you at all, because none of them
-points at him. On the other hand, sooner or later, somebody in the
-company is going to notice that this patent is actually pointing at
-some people, and [the company] could threaten them and squeeze money
-out of them—never mind that those people didn’t attack this company.
- </p>
- <p>
- So if your employer says to you, “We need some patents to defend
-ourselves, so help us get patents,” I recommend this response:
- </p>
- <blockquote class="smallquotation">
- <p>
- Boss, I trust you and I’m sure you would only use those patents to
-defend the company if it’s attacked. But I don’t know who’s going to
-be the CEO of this company in five years. For all I know, it might get
-acquired by Microsoft. So I really can’t trust the company’s word to
-only use these patents for defense unless I get it in writing. Please
-put it in writing that any patents I provide for the company will only
-be used for self-defense and collective security, and not for
-repression, and then I’ll be able to get patents for the company with
-a clean conscience.
- </p>
- </blockquote>
- <p>
- It would be most interesting to raise this not just in private with
-your boss, but also on the company’s discussion list.
- </p>
- <p>
- The other thing that could happen is that the company could fail and
-its assets could be auctioned off, including the patents; and the
-patents will be bought by someone who means to use them to do
-something nasty.
- </p>
- <p>
- This cross-licensing practice is very important to understand, because
-this is what punctures the argument of the software patent advocates
-who say that software patents are needed to protect the starving
-genius. They give you a scenario which is a series of unlikelihoods.
- </p>
- <p>
- So let’s look at it. According to this scenario, there’s a brilliant
-designer of whatever, who’s been working for years by himself in his
-attic coming up with a better way to do whatever it is. And now that
-it’s ready, he wants to start a business and mass-produce this thing;
-and because his idea is so good his company will inevitably succeed—
-except for one thing: the big companies will compete with him and take
-all his market the away. And because of this, his business will almost
-certainly fail, and then he will starve.
- </p>
- <p>
- Well, let’s look at all the unlikely assumptions here.
- </p>
- <p>
- First of all, that he comes up with this idea working by
-himself. That’s not very likely. In a high-tech field, most progress
-is made by people working in a field, doing things and talking with
-people in the field. But I wouldn’t say it’s impossible, not that one
-thing by itself.
- </p>
- <p>
- But anyway the next supposition is that he’s going to start a business
-and that it’s going to succeed. Well, just because he’s a brilliant
-engineer doesn’t mean that he’s any good at running a business. Most
-new businesses fail; more than 95 percent of them, I think, fail within a few
-years. So that’s probably what’s going to happen to him, no matter
-what.
- </p>
- <p>
- Ok, let’s assume that in addition to being a brilliant engineer who
-came up with something great by himself, he’s also talented at running
-businesses. If he has a knack for running businesses, then maybe his
-business won’t fail. After all, not all new businesses fail, there are
-a certain few that succeed. Well, if he understands business, then
-instead of trying to go head to head with large companies, he might
-try to do things that small companies are better at and have a better
-chance of succeeding. He might succeed. But let’s suppose it fails
-anyway. If he’s so brilliant and has a knack for running businesses,
-I’m sure he won’t starve, because somebody will want to give him a
-job.
- </p>
- <p>
- So a series of unlikelihoods—it’s not a very plausible scenario. But
-let’s look at it anyway.
- </p>
- <p>
- Because where they go from there is to say the patent system will
-“protect” our starving genius, because he can get a patent on this
-technique. And then when IBM wants to compete with him, he says,
-“IBM, you can’t compete with me, because I’ve got this patent,” and
-IBM says, “Oh, no, not again!”
- </p>
- <p>
- Well, here’s what really happens.
- </p>
- <p>
- IBM says, “Oh, how nice, you have a patent. Well, we have this patent,
-and this patent, and this patent, and this patent, and this patent,
-all of which cover other ideas implemented in your product, and if you
-think you can fight us on all those, we’ll pull out some more. So
-let’s sign a cross-license agreement, and that way nobody will get
-hurt.” Now since we’ve assumed that our genius understands business,
-he’s going to realize that he has no choice. He’s going to sign the
-cross-license agreement, as just about everybody does when IBM demands
-it. And then this means that IBM will get “access” to his patent,
-meaning IBM would be free to compete with him just as if there were no
-patents, which means that the supposed benefit that they claim he
-would get by having this patent is not real. He won’t get this
-benefit.
- </p>
- <p>
- The patent might “protect” him from competition from you or me, but
-not from IBM—not from the very megacorporations which the scenario
-says are the threat to him. You know in advance that there’s got to
-be a flaw in this reasoning when people who are lobbyists for
-megacorporations recommend a policy supposedly because it’s going to
-protect their small competitors from them. If it really were going to
-do that, they wouldn’t be in favor of it. But this explains why
-[software patents] won’t do it.
- </p>
- <p>
- Even IBM can’t always do this, because there are companies that we
-refer to as patent trolls or patent parasites, and their only business
-is using patents to squeeze money out of people who really make
-something.
- </p>
- <p>
- Patent lawyers tell us that it’s really wonderful to have patents in
-your field, but they don’t have patents in their field.
-There are no patents on how to send or write a threatening letter, no
-patents on how to file a lawsuit, and no patents on how to persuade a
-judge or jury, so even IBM can’t make the patent trolls
-cross-license. But IBM figures, “Our competition will have to pay them
-too; this is just part of the cost of doing business, and we can live
-with it.” IBM and the other megacorporations figure that the general
-dominion over all activity that they get from their patents is good
-for them, and paying off the trolls they can live with. So that’s why
-they want software patents.
- <a name="index-IBM-1">
- </a>
- <a name="index-patents_002c-IBM-and-1">
- </a>
- </p>
- <p>
- There are also certain software developers who find it particularly
-difficult to get a patent license, and those are the developers of
-free software. The reason is that the usual patent license has
-conditions we can’t possibly fulfill, because usual patent licenses
-demand a payment per copy. But when software gives users the freedom
-to distribute and make more copies, we have no way to count the copies
-that exist.
- </p>
- <p>
- If someone offered me a patent license for a payment of one-millionth
-of a dollar per copy, the total amount of money I’d have to pay maybe
-is in my pocket now. Maybe it’s $50, but I don’t know if it’s
-$50, or $49, or what, because there’s no way I can count the
-copies that people have made.
- </p>
- <p>
- A patent holder doesn’t have to demand a payment per copy; a patent
-holder could offer you a license for a single lump sum, but those lump
-sums tend to be big, like US$100,000.
- </p>
- <p>
- And the reason that we’ve been able to develop so much
-freedom-respecting software is [that] we can develop software without
-money, but we can’t pay a lot of money without money. If we’re forced
-to pay for the privilege of writing software for the public, we won’t
-be able to do it very much.
- </p>
- <p>
- That’s the possibility of getting a license for the patent. The other
-possibility is to invalidate the patent. If the country considers
-software patents to be basically valid, and allowed, the only question
-is whether that particular patent meets the criteria. It’s only
-useful to go to court if you’ve got an argument to make that might
-prevail.
- </p>
- <p>
- What would that argument be? You have to find evidence that, years
-ago, before the patent was applied for, people knew about the same
-idea. And you’d have to find things today that demonstrate that they
-knew about it publicly at that time. So the dice were cast years ago,
-and if they came up favorably for you, and if you can prove that fact
-today, then you have an argument to use to try to invalidate the
-patent. And it might work.
- </p>
- <p>
- It might cost you a lot of money to go through this case, and as a
-result, a probably invalid patent is a very frightening weapon to be
-threatened with if you don’t have a lot of money. There are people who
-can’t afford to defend their rights—lots of them. The ones who can
-afford it are the exception.
- </p>
- <p>
- These are the three things that you might be able to do about each
-patent that prohibits something in your program. The thing is, whether
-each one is possible depends on different details of the
-circumstances, so some of the time, none of them is possible; and when
-that happens, your project is dead.
- </p>
- <p>
- But lawyers in most countries tell us, “Don’t try to find the patents
-in advance,” and the reason is that the penalty for infringement is
-bigger if you knew about the patent. So what they tell you is “Keep
-your eyes shut. Don’t try to find out about the patents, just go
-blindly taking your design decisions, and hope.”
- </p>
- <p>
- And of course, with each single design decision, you probably don’t
-step on a patent. Probably nothing happens to you. But there are so many
-steps you have to take to get across the minefield, it’s very unlikely
-you will get through safely. And of course, the patent holders don’t
-all show up at the same time, so you don’t know how many there are
-going to be.
- </p>
- <p>
- The patent holder of the natural order recalculation patent was
-demanding 5 percent of the gross sales of every spreadsheet. You could
-imagine paying for a few such licenses, but what happens when patent
-holder number 20 comes along, and wants you to pay out the last
-remaining 5 percent? And then what happens when patent holder number 21 comes
-along?
- </p>
- <p>
- People in business say that this scenario is amusing but absurd,
-because your business would fail long before you got there. They told
-me that two or three such licenses would make your business fail. So
-you’d never get to 20. They show up one by one, so you never know how
-many more there are going to be.
- </p>
- <p>
- Software patents are a mess. They’re a mess for software developers,
-but in addition they’re a restriction on every computer user because
-software patents restrict what you can do on your computer.
- </p>
- <p>
- This is very different from patents, for instance, on automobile
-engines. These only restrict companies that make cars; they don’t
-restrict you and me. But software patents do restrict you and me, and
-everybody who uses computers. So we can’t think of them in purely
-economic terms; we can’t judge this issue purely in economic
-terms. There’s something more important at stake.
- </p>
- <a name="index-patents_002c-economically-self_002ddefeating">
- </a>
- <p>
- But even in economic terms, the system is self-defeating, because its
-purpose is supposed to be to promote progress. Supposedly by creating
-this artificial incentive for people to publish ideas, it’s going to
-help the field progress. But all it does is the exact opposite,
-because the big job in software is not coming up with ideas, it’s
-implementing thousands of ideas together in one program. And software
-patents obstruct that, so they’re economically self-defeating.
- </p>
- <p>
- And there’s even economic research showing that this is so—showing
-how in a field with a lot of incremental innovation, a patent system
-can actually reduce investment in R &amp; D. And of course, it also
-obstructs development in other ways. So even if we ignore the
-injustice of software patents, even if we were to look at it in the
-narrow economic terms that are usually proposed, it’s still harmful.
- </p>
- <p>
- People sometimes respond by saying that “People in other fields have
-been living with patents for decades, and they’ve gotten used to it,
-so why should you be an exception?”
- </p>
- <p>
- Now, that question has an absurd assumption. It’s like saying, “Other
-people get cancer, why shouldn’t you?” I think every time someone
-doesn’t get cancer, that’s good, regardless of what happened to the
-others. That question is absurd because of its presupposition that
-somehow we all have a duty to suffer the harm done by patents.
- </p>
- <p>
- But there is a sensible question buried inside it, and that sensible
-question is “What differences are there between various fields that
-might affect what is good or bad patent policy in those fields?”
- </p>
- <p>
- There is an important basic difference between fields in regard to how
-many patents are likely to prohibit or cover parts of any one
-product.
- </p>
- <p>
- Now we have a naive idea in our minds which I’m trying to get rid of,
-because it’s not true. And it’s that on any one product there is one
-patent, and that patent covers the overall design of that product. So
-if you design a new product, it can’t be patented already, and you
-will have an opportunity to get “the patent” on that product.
- </p>
- <p>
- That’s not how things work. In the 1800s, maybe they did, but not
-now. In fact, fields fall on a spectrum of how many patents [there
-are] per product. The beginning of the spectrum is one, but no field
-is like that today; fields are at various places on this spectrum.
- </p>
- <p>
- The field that’s closest to that is pharmaceuticals. A few decades
-ago, there really was one patent per pharmaceutical, at least at any
-time, because the patent covered the entire chemical formula of that
-one particular substance. Back then, if you developed a new drug, you
-could be sure it wasn’t already patented by somebody else and you
-could get the one patent on that drug.
- </p>
- <p>
- But that’s not how it works now. Now there are broader patents, so
-now you could develop a new drug, and you’re not allowed to make it
-because somebody has a broader patent which covers it already.
- </p>
- <p>
- And there might even be a few such patents covering your new drug
-simultaneously, but there won’t be hundreds. The reason is, our
-ability to do biochemical engineering is so limited that nobody knows
-how to combine so many ideas to make something that’s useful in
-medicine. If you can combine a couple of them you’re doing pretty
-well at our level of knowledge. But other fields involve combining
-more ideas to make one thing.
- </p>
- <p>
- At the other end of the spectrum is software, where we can combine
-more ideas into one usable design than anybody else, because our field
-is basically easier than all other fields. I’m presuming that the
-intelligence of people in our field is the same as that of people in
-physical engineering. It’s not that we’re fundamentally better than
-they are; it’s that our field is fundamentally easier, because we’re
-working with mathematics.
- </p>
- <p>
- A program is made out of mathematical components, which have a
-definition, whereas physical objects don’t have a definition. The
-matter does what it does, so through the perversity of matter, your
-design may not work the way it “should” have worked. And that’s just
-tough. You can’t say that the matter has a bug in it, and the
-physical universe should get fixed. [Whereas] we [programmers] can
-make a castle that rests on a mathematically thin line, and it stays
-up because nothing weighs anything.
- </p>
- <p>
- There’re so many complications you have to cope with in physical
-engineering that we don’t have to worry about.
- </p>
- <p>
- For instance, when I put an
- <code>
- if
- </code>
- -statement inside of a
- <code>
- while
- </code>
- -loop,
- </p>
- <ul>
- <li>
- I don’t have to worry that if this
- <code>
- while
- </code>
- -loop repeats at the wrong
- rate, the
- <code>
- if
- </code>
- -statement might start to vibrate and it might resonate
- and crack;
- </li>
- <li>
- I don’t have to worry that if it resonates much faster—you know,
- millions of times per second—that it might generate radio frequency
- signals that might induce wrong values in other parts of the
- program;
- </li>
- <li>
- I don’t have to worry that corrosive fluids from the environment
- might seep in between the
- <code>
- if
- </code>
- -statement and the
- <code>
- while
- </code>
- -statement and
- start eating away at them until the signals don’t pass anymore;
- </li>
- <li>
- I don’t have to worry about how the heat generated by my
- <code>
- if
- </code>
- -statement is going to get out through the
- <code>
- while
- </code>
- -statement so that
- it doesn’t make the
- <code>
- if
- </code>
- -statement burn out; and
- </li>
- <li>
- I don’t have to worry about how I would take out the broken
- <code>
- if
- </code>
- -statement if it does crack, burn, or corrode, and replace it with
- another
- <code>
- if
- </code>
- -statement to make the program run again.
- </li>
- </ul>
- <p>
- For that matter, I don’t have to worry about how I’m going to insert
-the
- <code>
- if
- </code>
- -statement inside the
- <code>
- while
- </code>
- -statement every time I produce a
-copy of the program. I don’t have to design a factory to make copies
-of my program, because there are various general commands that will
-make copies of anything.
- </p>
- <p>
- If I want to make copies on CD, I just have to write a master; and
-there’s one program I can [use to] make a master out of anything,
-write any data I want. I can make a master CD and write it and send
-it off to a factory, and they’ll duplicate whatever I send them. I
-don’t have to design a different factory for each thing I want to
-duplicate.
- </p>
- <p>
- Very often with physical engineering you have to do that; you have to
-design products for manufacturability. Designing the factory may even
-be a bigger job than designing the product, and then you may have to
-spend millions of dollars to build the factory. So with all of this
-trouble, you’re not going to be able to put together so many different
-ideas in one product and have it work.
- </p>
- <p>
- A physical design with a million nonrepeating different design
-elements is a gigantic project. A program with a million different
-design elements, that’s nothing. It’s a few hundred thousand lines of
-code, and a few people will write that in a few years, so it’s not a
-big deal. So the result is that the patent system weighs
-proportionately heavier on us than it does on people in any other
-field who are being held back by the perversity of matter.
- </p>
- <a name="index-Linux-kernel-3">
- </a>
- <a name="index-kernel_002c-Linux-3">
- </a>
- <p>
- A lawyer did a study of one particular large program, namely the
-kernel Linux, which is used together with the
- <a name="index-GNU-_0028see-also-both-software-and-GNU_0029-6">
- </a>
- GNU operating system
-that I launched. This was five years ago now; he found 283 different
-US patents, each of which appeared to prohibit some computation done
-somewhere in the code of Linux. At the time I saw an article saying
-that Linux was 0.25 percent of the whole system. So by multiplying 300 by 400
-we can estimate the number of patents that would prohibit something in
-the whole system as being around 100,000. This is a very rough
-estimate only, and no more accurate information is available, since
-trying to figure it out would be a gigantic task.
- </p>
- <p>
- Now this lawyer did not publish the list of patents, because that
-would have endangered the developers of Linux the kernel, putting them
-in a position where the penalties if they were sued would be
-greater. He didn’t want to hurt them; he wanted to demonstrate how bad
-this problem is, of patent gridlock.
- <a name="index-Linux-kernel-4">
- </a>
- <a name="index-kernel_002c-Linux-4">
- </a>
- </p>
- <a name="index-development_002c-patents">
- </a>
- <a name="index-patents_002c-difference-between-copyrights-and-1">
- </a>
- <a name="index-copyright_002c-difference-between-patents-and">
- </a>
- <p>
- Programmers can understand this immediately, but politicians usually
-don’t know much about programming; they usually imagine that patents
-are basically much like copyrights, only somehow stronger. They
-imagine that since software developers are not endangered by the
-copyrights on their work, that they won’t be endangered by the patents
-on their work either. They imagine that, since when you write a
-program you have the copyright, [therefore likewise] if you write a
-program you have the patents also. This is false—so how do we give
-them a clue what patents would really do? What they really do in
-countries like the US?
- </p>
- <p>
- I find it’s useful to make an analogy between software and
-symphonies. Here’s why it’s a good analogy.
- </p>
- <p>
- A program or symphony combines many ideas. A symphony combines many
-musical ideas. But you can’t just pick a bunch of ideas and say
-“Here’s my combination of ideas, do you like it?” Because in order to
-make them work you have to implement them all. You can’t just pick
-musical ideas and list them and say, “Hey, how do you like this
-combination?” You can’t hear that [list]. You have to write notes
-which implement all these ideas together.
- </p>
- <p>
- The hard task, the thing most of us wouldn’t be any good at, is
-writing all these notes to make the whole thing sound good. Sure, lots
-of us could pick musical ideas out of a list, but we wouldn’t know how
-to write a good-sounding symphony to implement those ideas. Only some
-of us have that talent. That’s the thing that limits you. I could
-probably invent a few musical ideas, but I wouldn’t know how to use
-them to any effect.
- </p>
- <p>
- So imagine that it’s the 1700s, and the governments of Europe decide
-that they want to promote the progress of symphonic music by
-establishing a system of musical idea patents, so that any musical
-idea described in words could be patented.
- </p>
- <p>
- For instance, using a particular sequence of notes as a motif could be
-patented, or a chord progression could be patented, or a rhythmic
-pattern could be patented, or using certain instruments by themselves
-could be patented, or a format of repetitions in a movement could be
-patented. Any sort of musical idea that could be described in words
-would have been patentable.
- </p>
- <a name="index-Beethoven_002c-Ludwig-van">
- </a>
- <p>
- Now imagine that it’s 1800 and you’re Beethoven, and you want to write
-a symphony. You’re going to find it’s much harder to write a symphony
-you don’t get sued for than to write one that sounds good, because you
-have to thread your way around all the patents that exist. If you
-complained about this, the patent holders would say, “Oh, Beethoven,
-you’re just jealous because we had these ideas first. Why don’t you go
-and think of some ideas of your own?”
- </p>
- <p>
- Now Beethoven had ideas of his own. The reason he’s considered a great
-composer is because of all of the new ideas that he had, and he
-actually used. And he knew how to use them in such a way that they
-would work, which was to combine them with lots of well-known
-ideas. He could put a few new ideas into a composition together with a
-lot of old and uncontroversial ideas. And the result was a piece that
-was controversial, but not so much so that people couldn’t get used to
-it.
- </p>
- <p>
- To us, Beethoven’s music doesn’t sound controversial; I’m told it was,
-when it was new. But because he combined his new ideas with a lot of
-known ideas, he was able to give people a chance to stretch a certain
-amount. And they could, which is why to us those ideas sound just
-fine. But nobody, not even a Beethoven, is such a genius that he could
-reinvent music from zero, not using any of the well-known ideas, and
-make something that people would want to listen to. And nobody is such
-a genius he could reinvent computing from zero, not using any of the
-well-known ideas, and make something that people want to use.
- <a name="index-Beethoven_002c-Ludwig-van-1">
- </a>
- </p>
- <p>
- When the technological context changes so frequently, you end up with
-a situation where what was done 20 years ago is totally
-inadequate. Twenty years ago there was no World Wide Web. So, sure,
-people did a lot of things with computers back then, but what they
-want to do today are things that work with the World Wide Web. And you
-can’t do that using only the ideas that were known 20 years ago. And I
-presume that the technological context will continue to change,
-creating fresh opportunities for somebody to get patents that give the
-shaft to the whole field.
- <a name="index-patents_002c-difference-between-copyrights-and-2">
- </a>
- <a name="index-copyright_002c-difference-between-patents-and-1">
- </a>
- </p>
- <p>
- Big companies can even do this themselves. For instance, a few years
-ago
- <a name="index-Microsoft_002c-and-patents">
- </a>
- Microsoft decided to make a phony open standard for documents and
-to get it approved as a standard by corrupting the
- <a name="index-International-Organization-for-Standardization">
- </a>
- International
-Standards Organization, which they did. But they designed it using
-something that Microsoft had patented. Microsoft is big enough that it
-can start with a patent, design a format or protocol to use that
-patented idea (whether it’s helpful or not), in such a way that there’s
-no way to be compatible unless you use that same idea too. And then
-Microsoft can make that a de facto standard with or without help from
-corrupted standards bodies. Just by its weight it can push people into
-using that format, and that basically means that they get a
-stranglehold over the whole world. So we need to show the politicians
-what’s really going on here. We need to show them why this is bad.
- </p>
- <p>
- Now I’ve heard it said that the reason
- <a name="index-New-Zealand">
- </a>
- New Zealand is considering
-software patents is that one large company wants to be given some
-monopolies. To restrict everyone in the country so that one company
-will make more money is the absolute opposite of statesmanship.
- <a name="index-development_002c-patents-1">
- </a>
- </p>
- <hr size="2"/>
-