danger-of-software-patents.html (74593B)
1 <!--#include virtual="/server/header.html" --> 2 <!-- Parent-Version: 1.96 --> 3 <!-- This page is derived from /server/standards/boilerplate.html --> 4 <!--#set var="TAGS" value="speeches" --> 5 <!--#set var="DISABLE_TOP_ADDENDUM" value="yes" --> 6 <title>The Danger of Software Patents 7 - GNU Project - Free Software Foundation</title> 8 <!--#include virtual="/philosophy/po/danger-of-software-patents.translist" --> 9 <!--#include virtual="/server/banner.html" --> 10 <!--#include virtual="/philosophy/ph-breadcrumb.html" --> 11 <!--GNUN: OUT-OF-DATE NOTICE--> 12 <!--#include virtual="/server/top-addendum.html" --> 13 <div class="article reduced-width"> 14 <h2>The Danger of Software Patents</h2> 15 16 <address class="byline">by <a href="https://www.stallman.org/">Richard 17 Stallman</a></address> 18 19 <div class="infobox"> 20 <p>This is the transcript of a talk presented on 8 October 2009 at 21 Victoria University of Wellington.</p> 22 </div> 23 <hr class="thin" /> 24 25 <dl> 26 <dt>SF:</dt> 27 <dd><p>My name is Susy Frankel and on behalf of myself and Meredith 28 Kolsky Lewis, I'd like to welcome you to this seminar hosted by the 29 New Zealand Centre for International Economic Law. Brenda Chawner, 30 who is part of the Victoria University School of Information 31 Management, rather than the Centre I just named being part of the Law 32 Faculty, is really responsible for bringing Richard Stallman back to 33 New Zealand and hosting his tour of New Zealand, including this stop 34 here in Wellington tonight. She's unfortunately unable to be with us 35 at this moment because she's doing what we do in universities which is 36 teach.</p> 37 38 <p>So it's my pleasure to welcome you to the lecture “The Danger 39 of Software Patents.” Richard Stallman has a suite of lectures 40 that he offers, and after discussion with Brenda, I chose this topic 41 precisely because for the first real time in New Zealand history, we 42 have a somewhat prolonged, but important, debate about patent law 43 reform, and many of you in the room are responsible for the debate 44 relating to software patents. So it seemed very topical, very timely. 45 So thank you, Richard, for making that offer.</p> 46 47 <p>Richard Stallman needs little introduction. Nonetheless, for some 48 of you who have not heard of him previously, he has launched the 49 development of the GNU operating system. I had never heard GNU said 50 before, and I went online to YouTube (where would we be be without 51 YouTube)…</p></dd> 52 53 <dt>RMS:</dt> 54 <dd>Oh, you shouldn't recommend YouTube, because they distribute in a 55 patented video format.</dd> 56 57 <dt>SF:</dt> 58 <dd>Good point. I only recommend it for the point that I thought do 59 you say G N U or GNU?</dd> 60 61 <dt>RMS:</dt> 62 <dd>Wikipedia says that. [The answer is, pronounce it as a one 63 syllable, with a hard G.]</dd> 64 65 <dt>SF:</dt> 66 <dd>Yes, but live I heard you say it on YouTube. But nonetheless, the 67 important point is that it's not proprietorial. But the most 68 interesting point is that Richard has received many honors for his 69 work. My favorite, and therefore the one that I'm going to mention, 70 is the Takeda Award for Social and Economic Betterment, and I imagine 71 we're going to hear a lot of that tonight, so join me in welcoming 72 Richard.</dd> 73 74 <dt>RMS:</dt> 75 <dd><p>First of all, I'd like to mention one of the reasons why I'm 76 drinking this [a can or bottle of a cola which is not coke] is there's 77 a worldwide boycott of Coca-Cola Company for murdering union 78 organizers in Colombia. Look at the 79 site <a href="http://killercoke.org">killercoke.org</a>. And they're 80 not talking about the effects of drinking the product—after all, 81 the same might be true of many other products—it's murder. So 82 before you buy any drink product, look at the fine print and see if 83 it's made by Coca-Cola Company.</p> 84 85 <p>I'm most known for starting the free software movement and leading 86 development of the GNU operating system—although most of the 87 people who use the system mistakenly believe it's Linux and think it 88 was started by somebody else a decade later. But I'm not going to be 89 speaking about any of that today. I'm here to talk about a legal 90 danger to all software developers, distributors, and users: the danger 91 of patents—on computational ideas, computational techniques, an 92 idea for something you can do on a computer.</p> 93 94 <p>Now, to understand this issue, the first thing you need to realize 95 is that patent law has nothing to do with copyright law—they're 96 totally different. Whatever you learn about one of them, you can be 97 sure it doesn't apply to the other.</p> 98 99 <p>So, for example, any time a person makes a statement about 100 “intellectual property,” that's spreading confusion, 101 because it's lumping together not only these two laws but also at 102 least a dozen others. They're all different, and the result is any 103 statement which purports to be about “intellectual 104 property” is pure confusion—either the person making the 105 statement is confused, or the person is trying to confuse others. But 106 either way, whether it's accidental or malicious, it's confusion.</p> 107 108 <p>Protect yourself from this confusion by rejecting any statement 109 which makes use of that term. The only way to make thoughtful 110 comments and think clear thoughts about any one of these laws is to 111 distinguish it first from all the others, and talk or think about one 112 particular law, so that we can understand what it actually does and 113 then form conclusions about it. So I'll be talking about patent law, 114 and what happens in those countries which have allowed patent law to 115 restrict software.</p> 116 117 <p>So, what does a patent do? A patent is an explicit, 118 government-issued monopoly on using a certain idea. In the patent 119 there's a part called the claims, which describe exactly what you're 120 not allowed to do (although they're written in a way you probably 121 can't understand). It's a struggle to figure out what those 122 prohibitions actually mean, and they may go on for many pages of fine 123 print.</p> 124 125 <p>So the patent typically lasts for 20 years, which is a fairly long 126 time in our field. Twenty years ago there was no World Wide 127 Web—a tremendous amount of the use of computers goes on in an 128 area which wasn't even possible to propose 20 years ago. So of course 129 everything that people do on it is something that's new since 20 years 130 ago—at least in some aspect it is new. So if patents had been 131 applied for we'd be prohibited from doing all of it, and we may be 132 prohibited from doing all of it in countries that have been foolish 133 enough to have such a policy.</p> 134 135 <p>Most of the time, when people describe the function of the patent 136 system, they have a vested interest in the system. They may be patent 137 lawyers, or they may work in the Patent Office, or they may be in the 138 patent office of a megacorporation, so they want you to like the 139 system.</p> 140 141 <p>The <cite>Economist</cite> once referred to the patent system as 142 “a time-consuming lottery.” If you've ever seen publicity 143 for a lottery, you understand how it works: they dwell on the very 144 unlikely probability of winning, and they don't talk about the 145 overwhelming likelihood of losing. In this way, they intentionally 146 and systematically present a biased picture of what's likely to happen 147 to you, without actually lying about any particular fact.</p> 148 149 <p>It's the same way for the publicity for the patent system: they 150 talk about what it's like to walk down the street with a patent in 151 your pocket—or first of all, what it's like to get a patent, 152 then what it's like to have a patent in your pocket, and every so 153 often you can pull it out and point it at somebody and say, 154 “Give me your money.”</p> 155 156 <p>To compensate for their bias, I'm going to describe it from the 157 other side, the victim side—what it's like for people who want 158 to develop or distribute or run software. You have to worry that any 159 day someone might walk up to you and point a patent at you and say, 160 “Give me your money.”</p> 161 162 <p>If you want to develop software in a country that allows software 163 patents, and you want to work with patent law, what will you have to 164 do?</p> 165 166 <p>You could try to make a list of all the ideas that one might be 167 able to find in the program that you're about to write, aside from the 168 fact that you don't know that when you start writing the program. 169 [But] even after you finish writing the program you wouldn't be able 170 to make such a list.</p> 171 172 <p>The reason is… in the process you conceived of it in one 173 particular way—you've got a mental structure to apply to your 174 design. And because of that, it will block you from seeing other 175 structures that somebody might use to understand the same 176 program—because you're not coming to it fresh; you already 177 designed it with one structure in mind. Someone else who sees it for 178 the first time might see a different structure, which involves 179 different ideas, and it would be hard for you to see what those other 180 ideas are. But nonetheless they're implemented in your program, and 181 those patents could prohibit your program, if those ideas are 182 patented.</p> 183 184 <p>For instance, suppose there were graphical-idea patents and you 185 wanted to draw a square. Well, you would realize that if there was a 186 patent on a bottom edge, it would prohibit your square. You could put 187 “bottom edge” on the list of all ideas implemented in your 188 drawing. But you might not realize that somebody else with a patent 189 on bottom corners could sue you easily also, because he could take 190 your drawing and turn it by 45 degrees. And now your square is like 191 this, and it has a bottom corner.</p> 192 193 <p>So you couldn't make a list of all the ideas which, if patented, 194 could prohibit your program.</p> 195 196 <p>What you might try to do is find out all the ideas that are 197 patented that might be in your program. Now you can't do that 198 actually, because patent applications are kept secret for at least 199 eighteen months; and the result is the Patent Office could be 200 considering now whether to issue a patent, and they won't tell you. 201 And this is not just an academic, theoretical possibility.</p> 202 203 <p>For instance, in 1984 the Compress program was written, a program 204 for compressing files using the <abbr title="Lempel-Ziv-Welch"> 205 LZW</abbr> data compression algorithm, and at that time there was 206 no patent on that algorithm for compressing files. The author got the 207 algorithm from an article in a journal. That was when we thought that 208 the purpose of computer science journals was to publish algorithms so 209 people could use them.</p> 210 211 <p>He wrote this program, he released it, and in 1985 a patent was 212 issued on that algorithm. But the patent holder was cunning and 213 didn't immediately go around telling people to stop using it. The 214 patent holder figured, “Let's let everybody dig their grave 215 deeper.” A few years later they started threatening people; it 216 became clear we couldn't use Compress, so I asked for people to 217 suggest other algorithms we could use for compressing files.</p> 218 219 <p>And somebody wrote and said, “I developed another data compression 220 algorithm that works better, I've written a program, I'd like to give 221 it to you.” So we got ready to release it, and a week before it was 222 ready to be released, I read in the <cite>New York Times</cite> weekly 223 patent column, which I rarely saw—it's a couple of times a year 224 I might see it—but just by luck I saw that someone had gotten a 225 patent for “inventing a new method of compressing data.” 226 And so I said we had better look at this, and sure enough it covered 227 the program we were about to release. But it could have been worse: 228 the patent could have been issued a year later, or two years later, or 229 three years later, or five years later.</p> 230 231 <p>Anyway, someone else came up with another, even better compression 232 algorithm, which was used in the program gzip, and just about 233 everybody who wanted to compress files switched to gzip, so 234 it sounds like a happy ending. But you'll hear more later. It's not 235 entirely so happy.</p> 236 237 <p>So, you can't find out about the patents that are being considered 238 even though they may prohibit your work once they come out, but you 239 can find out about the already issued patents. They're all published 240 by the Patent Office. The problem is you can't read them all, because 241 there are too many of them.</p> 242 243 <p>In the US I believe there are hundreds of thousands of 244 software patents; keeping track of them would be a tremendous job. So 245 you're going to have to search for relevant patents. And you'll find 246 a lot of relevant patents, but you won't necessarily find them 247 all.</p> 248 249 <p>For instance, in the 80s and 90s, there was a patent on 250 “natural order recalculation” in spreadsheets. Somebody 251 once asked me for a copy of it, so I looked in our computer file which 252 lists the patent numbers. And then I pulled out the drawer to get the 253 paper copy of this patent and xeroxed it and sent it to him. And when 254 he got it, he said, “I think you sent me the wrong patent. This 255 is something about compilers.” So I thought maybe our file has 256 the wrong number in it. I looked in it again, and sure enough it said, 257 “A method for compiling formulas into object code.” So I 258 started to read it to see if it was indeed the wrong patent. I read 259 the claims, and sure enough it was the natural order recalculation 260 patent, but it didn't use those terms. It didn't use the term 261 “spreadsheet.” In fact, what the patent prohibited was 262 dozens of different ways of implementing topological sort—all 263 the ways they could think of. But I don't think it used the term 264 “topological sort.”</p> 265 266 <p>So if you were writing a spreadsheet and you tried to find relevant 267 patents by searching, you might have found a lot of patents. But you 268 wouldn't have found this one until you told somebody, “Oh, I'm 269 working on a spreadsheet,” and he said, “Oh, did you know 270 those other companies that are making spreadsheets are getting 271 sued?” Then you would have found out.</p> 272 273 <p>Well, you can't find all the patents by searching, but you can find 274 a lot of them. And then you've got to figure out what they mean, 275 which is hard, because patents are written in tortuous legal language 276 which is very hard to understand the real meaning of. So you're going 277 to have to spend a lot of time talking with an expensive lawyer 278 explaining what you want to do in order to find out from the lawyer 279 whether you're allowed to do it.</p> 280 281 <p>Even the patent holders often can't recognize just what their 282 patents mean. For instance, there's somebody named Paul Heckel who 283 released a program for displaying a lot of data on a small screen, and 284 based on a couple of the ideas in that program he got a couple of 285 patents.</p> 286 287 <p>I once tried to find a simple way to describe what claim 1 of one 288 of those patents covered. I found that I couldn't find any simpler 289 way of saying it than what was in the patent itself; and that 290 sentence, I couldn't manage to keep it all in my mind at once, no 291 matter how hard I tried.</p> 292 293 <p>And Heckel couldn't follow it either, because when he saw 294 HyperCard, all he noticed was it was nothing like his program. It 295 didn't occur to him that the way his patent was written it might 296 prohibit HyperCard; but his lawyer had that idea, so he threatened 297 Apple. And then he threatened Apple's customers, and eventually Apple 298 made a settlement with him which is secret, so we don't know who 299 really won. And this is just an illustration of how hard it is for 300 anybody to understand what a patent does or doesn't prohibit.</p> 301 302 <p>In fact, I once gave this speech and Heckel was in the audience. 303 And at this point he jumped up and said, “That's not true, I 304 just didn't know the scope of my protection.” And I said, 305 “Yeah, that's what I said,” at which point he sat down and 306 that was the end of my experience being heckled by Heckel. If I had 307 said no, he probably would have found a way to argue with me.</p> 308 309 <p>Anyway, after a long, expensive conversation with a lawyer, the 310 lawyer will give you an answer like this:</p> 311 312 <blockquote><p>If you do something in this area, you're almost certain 313 to lose a lawsuit; if you do something in this area, there's a 314 considerable chance of losing a lawsuit; and if you really want to be 315 safe you've got to stay out of this area. But there's a sizeable 316 element of chance in the outcome of any lawsuit.</p></blockquote> 317 318 <p>So now that you have clear, predictable rules for doing business, 319 what are you actually going to do? Well, there are three things that 320 you could do to deal with the issue of any particular patent. One is 321 to avoid it, another is to get a license for it, and the third is to 322 invalidate it. So I'll talk about these one by one.</p> 323 324 <p>First, there's the possibility of avoiding the patent, which means, 325 don't implement what it prohibits. Of course, if it's hard to tell 326 what it prohibits, it might be hard to tell what would suffice to 327 avoid it.</p> 328 329 <p>A couple of years ago Kodak sued Sun [for] using a patent for 330 something having to do with object-oriented programming, and Sun 331 didn't think it was infringing that patent. But the court decided it 332 was; and when other people look at that patent they haven't the 333 faintest idea whether that decision was right or not. No one can tell 334 what that patent does or doesn't cover, but Sun had to pay hundreds of 335 millions of dollars because of violating a completely incomprehensible 336 law.</p> 337 338 <p>Sometimes you can tell what you need to avoid, and sometimes what 339 you need to avoid is an algorithm.</p> 340 341 <p>For instance, I saw a patent for something like the fast Fourier 342 transform, but it ran twice as fast. Well, if the ordinary FFT is 343 fast enough for your application then that's an easy way to avoid this 344 other one. And most of the time that would work. Once in a while you 345 might be trying to do something where it runs doing FFT all the time, 346 and it's just barely fast enough using the faster algorithm. And then 347 you can't avoid it, although maybe you could wait a couple of years 348 for a faster computer. But that's going to be rare. Most of the time 349 that patent will to be easy to avoid.</p> 350 351 <p>On the other hand, a patent on an algorithm may be impossible to 352 avoid. Consider the LZW data compression algorithm. Well, as I 353 explained, we found a better data compression algorithm, and everybody 354 who wanted to compress files switched to the program gzip 355 which used the better algorithm. And the reason is, if you just want 356 to compress the file and uncompress it later, you can tell people to 357 use this program to uncompress it; then you can use any program with 358 any algorithm, and you only care how well it works.</p> 359 360 <p>But LZW is used for other things, too; for instance the PostScript 361 language specifies operators for LZW compression and LZW 362 uncompression. It's no use having another, better algorithm because 363 it makes a different format of data. They're not interoperable. If 364 you compress it with the gzip algorithm, you won't be able to 365 uncompress it using LZW. So no matter how good your other algorithm 366 is, and no matter what it is, it just doesn't enable you to implement 367 PostScript according to the specs.</p> 368 369 <p>But I noticed that users rarely ask their printers to compress 370 things. Generally the only thing they want their printers to do is to 371 uncompress; and I also noticed that both of the patents on the LZW 372 algorithm were written in such a way that if your system can only 373 uncompress, it's not forbidden. These patents were written so that 374 they covered compression, and they had other claims covering both 375 compression and uncompression; but there was no claim covering only 376 uncompression. So I realized that if we implement only the 377 uncompression for LZW, we would be safe. And although it would not 378 satisfy the specification, it would please the users sufficiently; it 379 would do what they actually needed. So that's how we barely squeaked 380 by avoiding the two patents.</p> 381 382 <p>Now there is GIF format, for images. That uses the LZW 383 algorithm also. It didn't take long for people to define another 384 image format, called PNG, which stands for “PNG's Not 385 GIF.” I think it uses the gzip algorithm. And we 386 started saying to people, “Don't use GIF format, it's 387 dangerous. Switch to PNG.” And the users said, 388 “Well, maybe some day, but the browsers don't implement it 389 yet,” and the browser developers said, “We may implement 390 it someday, but there's not much demand from users.”</p> 391 392 <p>Well, it's pretty obvious what's going on—GIF was a 393 de facto standard. In effect, asking people to switch to a different 394 format, instead of their de facto standard, is like asking everyone in 395 New Zealand to speak Hungarian. People will say, “Well, yeah, 396 I'll learn to speak it after everyone else does.” And so we 397 never succeeded in asking people to stop using GIF, even 398 though one of those patent holders was going around to operators of 399 web sites, threatening to sue them unless they could prove that all of 400 the GIFs on the site were made with authorized, licensed 401 software.</p> 402 403 <p>So GIF was a dangerous trap for a large part of our 404 community. We thought we had an alternative to GIF format, 405 namely JPEG, but then somebody said, “I was just looking 406 through my portfolio of patents”—I think it was somebody that 407 just bought patents and used them to threaten people—and he 408 said, “and I found that one of them covers JPEG format.”</p> 409 410 <p>Well, JPEG was not a de facto standard, it's an official 411 standard, issued by a standards committee; and the committee had a 412 lawyer too. Their lawyer said he didn't think that this patent 413 actually covered JPEG format.</p> 414 415 <p>So who's right? Well, this patent holder sued a bunch of 416 companies, and if there was a decision, it would have said who was 417 right. But I haven't heard about a decision; I'm not sure if there 418 ever was one. I think they settled, and the settlement is almost 419 certainly secret, which means that it didn't tell us anything about 420 who's right.</p> 421 422 <p>These are fairly lightweight cases: one patent on JPEG, 423 two patents on the LZW algorithm used in GIF. Now you might 424 wonder how come there are two patents on the same algorithm? It's not 425 supposed to happen, but it did. And the reason is that the patent 426 examiners can't possibly take the time to study every pair of things 427 they might need to study and compare, because they're not allowed to 428 take that much time. And because algorithms are just mathematics, 429 there's no way you can narrow down which applications and patents you 430 need to compare.</p> 431 432 <p>You see, in physical engineering fields, they can use the physical 433 nature of what's going on to narrow things down. For instance, in 434 chemical engineering, they can say, “What are the substances 435 going in? What are the substances coming out?” If two different 436 [patent] applications are different in that way, then they're not the 437 same process so you don't need to worry. But the same math can be 438 represented in ways that can look very different, and until you study 439 them both together, you don't realize they're talking about the same 440 thing. And, because of this, it's quite common to see the same thing 441 get patented multiple times [in software].</p> 442 443 <p>Remember that program that was killed by a patent before we 444 released it? Well, that algorithm got patented twice also. In one 445 little field we've seen it happen in two cases that we ran 446 into—the same algorithm being patented twice. Well, I think my 447 explanation tells you why that happens.</p> 448 449 <p>But one or two patents is a lightweight case. What 450 about MPEG2, the video format? I saw a list of over 70 451 patents covering that, and the negotiations to arrange a way for 452 somebody to license all those patents took longer than developing the 453 standard itself. The JPEG committee wanted to develop a 454 follow-on standard, and they gave up. They said there were too many 455 patents; there was no way to do it.</p> 456 457 <p>Sometimes it's a feature that's patented, and the only way to avoid 458 that patent is not to implement that feature. For instance, the users 459 of the word processor Xywrite once got a downgrade in the mail, which 460 removed a feature. The feature was that you could define a list of 461 abbreviations. For instance, if you define “exp” as an 462 abbreviation for “experiment,” then if you type 463 “exp-space“ or “exp-comma,” the 464 “exp” would change automatically to 465 “experiment.”</p> 466 467 <p>Then somebody who had a patent on this feature threatened them, and 468 they concluded that the only thing they could do was to take the 469 feature out. And so they sent all the users a downgrade.</p> 470 471 <p>But they also contacted me, because my Emacs editor had a feature 472 like that starting from the late 70s. And it was described in the 473 Emacs manual, so they thought I might be able to help them invalidate 474 that patent. Well, I'm happy to know I've had at least one patentable 475 idea in my life, but I'm unhappy that someone else patented it.</p> 476 477 <p>Fortunately, in fact, that patent was eventually invalidated, and 478 partly on the strength of the fact that I had published using it 479 earlier. But in the meantime they had had to remove this feature.</p> 480 481 <p>Now, to remove one or two features may not be a disaster. But when 482 you have to remove 50 features, you could do it, but people are likely 483 to say, “This program's no good; it's missing all the features I 484 want.” So it may not be a solution. And sometimes a patent is 485 so broad that it wipes out an entire field, like the patent on 486 public-key encryption, which in fact put public-key encryption 487 basically off limits for about ten years.</p> 488 489 <p>So that's the option of avoiding the patent—often possible, 490 but sometimes not, and there's a limit to how many patents you can 491 avoid.</p> 492 493 <p>What about the next possibility, of getting a license for the 494 patent?</p> 495 496 <p>Well, the patent holder may not offer you a license. It's entirely 497 up to him. He could say, “I just want to shut you down.” 498 I once got a letter from somebody whose family business was making 499 casino games, which were of course computerized, and he had been 500 threatened by a patent holder who wanted to make his business shut 501 down. He sent me the patent. Claim 1 was something like “a 502 network with a multiplicity of computers, in which each computer 503 supports a multiplicity of games, and allows a multiplicity of game 504 sessions at the same time.”</p> 505 506 <p>Now, I'm sure in the 1980s there was a university that set up a 507 room with a network of workstations, and each workstation had some 508 kind of windowing facility. All they had to do was to install 509 multiple games and it would be possible to display multiple game 510 sessions at once. This is so trivial and uninteresting that nobody 511 would have bothered to publish an article about doing it. No one 512 would have been interested in publishing an article about doing it, 513 but it was worth patenting it. If it had occurred to you that you 514 could get a monopoly on this trivial thing, then you could shut down 515 your competitors with it.</p> 516 517 <p>But why does the Patent Office issue so many patents that seem 518 absurd and trivial to us?</p> 519 520 <p>It's not because the patent examiners are stupid, it's because 521 they're following a system, and the system has rules, and the rules 522 lead to this result.</p> 523 524 <p>You see, if somebody has made a machine that does something once, 525 and somebody else designs a machine that will do the same thing, but N 526 times, for us that's a <code>for</code>-loop, but for the Patent Office 527 that's an invention. If there are machines that can do A, and there 528 are machines that can do B, and somebody designs a machine that can do 529 A or B, for us that's an <code>if-then-else</code> statement, but for the 530 Patent Office that's an invention. So they have very low standards, 531 and they follow those standards; and the result is patents that look 532 absurd and trivial to us. Whether they're legally valid I can't say. 533 But every programmer who sees them laughs.</p> 534 535 <p>In any case, I was unable to suggest anything he could do to help 536 himself, and he had to shut down his business. But most patent 537 holders will offer you a license. It's likely to be rather 538 expensive.</p> 539 540 <p>But there are some software developers that find it particularly 541 easy to get licenses, most of the time. Those are the 542 megacorporations. In any field the megacorporations generally own 543 about half the patents, and they cross-license each other, and they 544 can make anybody else cross-license if he's really producing anything. 545 The result is that they end up painlessly with licenses for almost all 546 the patents.</p> 547 548 <p>IBM wrote an article in its house magazine, <cite>Think</cite> 549 magazine—I think it's issue 5, 1990—about the benefit IBM 550 got from its almost 9,000 US patents at the time (now it's up to 551 45,000 or more). They said that one of the benefits was that they 552 collected money, but the main benefit, which they said was perhaps an 553 order of magnitude greater, was “getting access to the patents 554 of others,” namely cross-licensing.</p> 555 556 <p>What this means is since IBM, with so many patents, can make almost 557 everybody give them a cross-license, IBM avoids almost all the grief 558 that the patent system would have inflicted on anybody else. So 559 that's why IBM wants software patents. That's why the 560 megacorporations in general want software patents, because they know 561 that by cross-licensing, they will have a sort of exclusive club on 562 top of a mountain peak. And all the rest of us will be down here, and 563 there's no way we can get up there. You know, if you're a genius, you 564 might start up a small company and get some patents, but you'll never 565 get into IBM's league, no matter what you do.</p> 566 567 <p>Now a lot of companies tell their employees, “Get us patents 568 so we can defend ourselves” and they mean, “use them to 569 try to get cross-licensing,” but it just doesn't work well. 570 It's not an effective strategy if you've got a small number of 571 patents.</p> 572 573 <p>Suppose you've got three patents. One points there, one points 574 there, and one points there, and somebody over there points a patent 575 at you. Well, your three patents don't help you at all, because none 576 of them points at him. On the other hand, sooner or later, somebody 577 in the company is going to notice that this patent is actually 578 pointing at some people, and [the company] could threaten them and 579 squeeze money out of them—never mind that those people didn't 580 attack this company.</p> 581 582 <p>So if your employer says to you, “We need some patents to 583 defend ourselves, so help us get patents,” I recommend this 584 response:</p> 585 586 <blockquote><p>Boss, I trust you and I'm sure you would only use those 587 patents to defend the company if it's attacked. But I don't know 588 who's going to be the CEO of this company in five years. For all I 589 know, it might get acquired by Microsoft. So I really can't trust the 590 company's word to only use these patents for defense unless I get it 591 in writing. Please put it in writing that any patents I provide for 592 the company will only be used for self-defense and collective 593 security, and not for repression, and then I'll be able to get patents 594 for the company with a clean conscience.</p></blockquote> 595 596 <p>It would be most interesting to raise this not just in private with 597 your boss, but also on the company's discussion list.</p> 598 599 <p>The other thing that could happen is that the company could fail 600 and its assets could be auctioned off, including the patents; and the 601 patents will be bought by someone who means to use them to do 602 something nasty.</p> 603 604 <p>This cross-licensing practice is very important to understand, 605 because this is what punctures the argument of the software patent 606 advocates who say that software patents are needed to protect the 607 starving genius. They give you a scenario which is a series of 608 unlikelihoods.</p> 609 610 <p>So let's look at it. According to this scenario, there's a 611 brilliant designer of whatever, who's been working for years by 612 himself in his attic coming up with a better way to do whatever it is. 613 And now that it's ready, he wants to start a business and mass-produce 614 this thing; and because his idea is so good his company will 615 inevitably succeed—except for one thing: the big companies will 616 compete with him and take all his market the away. And because of 617 this, his business will almost certainly fail, and then he will 618 starve.</p> 619 620 <p>Well, let's look at all the unlikely assumptions here.</p> 621 622 <p>First of all, that he comes up with this idea working by himself. 623 That's not very likely. In a high-tech field, most progress is made 624 by people working in a field, doing things and talking with people in 625 the field. But I wouldn't say it's impossible, not that one thing by 626 itself.</p> 627 628 <p>But anyway the next supposition is that he's going to start a 629 business and that it's going to succeed. Well, just because he's a 630 brilliant engineer doesn't mean that he's any good at running a 631 business. Most new businesses fail; more than 95 percent of them, I think, 632 fail within a few years. So that's probably what's going to happen to 633 him, no matter what.</p> 634 635 <p>Ok, let's assume that in addition to being a brilliant engineer who 636 came up with something great by himself, he's also talented at running 637 businesses. If he has a knack for running businesses, then maybe his 638 business won't fail. After all, not all new businesses fail, there 639 are a certain few that succeed. Well, if he understands business, 640 then instead of trying to go head to head with large companies, he 641 might try to do things that small companies are better at and have a 642 better chance of succeeding. He might succeed. But let's suppose it 643 fails anyway. If he's so brilliant and has a knack for running 644 businesses, I'm sure he won't starve, because somebody will want to 645 give him a job.</p> 646 647 <p>So a series of unlikelihoods—it's not a very plausible 648 scenario. But let's look at it anyway.</p> 649 650 <p>Because where they go from there is to say the patent system will 651 “protect” our starving genius, because he can get a patent 652 on this technique. And then when IBM wants to compete with him, he 653 says, “IBM, you can't compete with me, because I've got this 654 patent,” and IBM says, “Oh, no, not again!”</p> 655 656 <p>Well, here's what really happens.</p> 657 658 <p>IBM says, “Oh, how nice, you have a patent. Well, we have 659 this patent, and this patent, and this patent, and this patent, and 660 this patent, all of which cover other ideas implemented in your 661 product, and if you think you can fight us on all those, we'll pull 662 out some more. So let's sign a cross-license agreement, and that way 663 nobody will get hurt.” Now since we've assumed that our genius 664 understands business, he's going to realize that he has no choice. 665 He's going to sign the cross-license agreement, as just about 666 everybody does when IBM demands it. And then this means that IBM will 667 get “access” to his patent, meaning IBM would be free to 668 compete with him just as if there were no patents, which means that 669 the supposed benefit that they claim he would get by having this 670 patent is not real. He won't get this benefit.</p> 671 672 <p>The patent might “protect” him from competition from 673 you or me, but not from IBM—not from the very megacorporations 674 which the scenario says are the threat to him. You know in advance 675 that there's got to be a flaw in this reasoning when people who are 676 lobbyists for megacorporations recommend a policy supposedly because 677 it's going to protect their small competitors from them. If it really 678 were going to do that, they wouldn't be in favor of it. But this 679 explains why [software patents] won't do it.</p> 680 681 <p>Even IBM can't always do this, because there are companies that we 682 refer to as patent trolls or patent parasites, and their only business 683 is using patents to squeeze money out of people who really make 684 something.</p> 685 686 <p>Patent lawyers tell us that it's really wonderful to have patents 687 in your field, but they don't have patents in their field. There are 688 no patents on how to send or write a threatening letter, no patents on 689 how to file a lawsuit, and no patents on how to persuade a judge or 690 jury, so even IBM can't make the patent trolls cross-license. But IBM 691 figures, “Our competition will have to pay them too; this is 692 just part of the cost of doing business, and we can live with 693 it.” IBM and the other megacorporations figure that the general 694 dominion over all activity that they get from their patents is good 695 for them, and paying off the trolls they can live with. So that's why 696 they want software patents.</p> 697 698 <p>There are also certain software developers who find it particularly 699 difficult to get a patent license, and those are the developers of 700 free software. The reason is that the usual patent license has 701 conditions we can't possibly fulfill, because usual patent licenses 702 demand a payment per copy. But when software gives users the freedom 703 to distribute and make more copies, we have no way to count the copies 704 that exist.</p> 705 706 <p>If someone offered me a patent license for a payment of 707 one-millionth of a dollar per copy, the total amount of money I'd have 708 to pay maybe is in my pocket now. Maybe it's 50 dollars, but I don't 709 know if it's 50 dollars, or 49, or what, because there's no way I can 710 count the copies that people have made.</p> 711 712 <p>A patent holder doesn't have to demand a payment per copy; a patent 713 holder could offer you a license for a single lump sum, but those lump 714 sums tend to be big, like US$100,000.</p> 715 716 <p>And the reason that we've been able to develop so much 717 freedom-respecting software is [that] we can develop software without 718 money, but we can't pay a lot of money without money. If we're forced 719 to pay for the privilege of writing software for the public, we won't 720 be able to do it very much.</p> 721 722 <p>That's the possibility of getting a license for the patent. The 723 other possibility is to invalidate the patent. If the country 724 considers software patents to be basically valid, and allowed, the 725 only question is whether that particular patent meets the criteria. 726 It's only useful to go to court if you've got an argument to make that 727 might prevail.</p> 728 729 <p>What would that argument be? You have to find evidence that, years 730 ago, before the patent was applied for, people knew about the same 731 idea. And you'd have to find things today that demonstrate that they 732 knew about it publicly at that time. So the dice were cast years ago, 733 and if they came up favorably for you, and if you can prove that fact 734 today, then you have an argument to use to try to invalidate the 735 patent. And it might work.</p> 736 737 <p>It might cost you a lot of money to go through this case, and as a 738 result, a probably invalid patent is a very frightening weapon to be 739 threatened with if you don't have a lot of money. There are people 740 who can't afford to defend their rights—lots of them. The ones 741 who can afford it are the exception.</p> 742 743 <p>These are the three things that you might be able to do about each 744 patent that prohibits something in your program. The thing is, 745 whether each one is possible depends on different details of the 746 circumstances, so some of the time, none of them is possible; and when 747 that happens, your project is dead.</p> 748 749 <p>But lawyers in most countries tell us, “Don't try to find the 750 patents in advance,” and the reason is that the penalty for 751 infringement is bigger if you knew about the patent. So what they 752 tell you is “Keep your eyes shut. Don't try to find out about 753 the patents, just go blindly taking your design decisions, and 754 hope.”</p> 755 756 <p>And of course, with each single design decision, you probably don't 757 step on a patent. Probably nothing happens to you. But there are so 758 many steps you have to take to get across the minefield, it's very 759 unlikely you will get through safely. And of course, the patent 760 holders don't all show up at the same time, so you don't know how many 761 there are going to be.</p> 762 763 <p>The patent holder of the natural order recalculation patent was 764 demanding 5 percent of the gross sales of every spreadsheet. You could 765 imagine paying for a few such licenses, but what happens when patent 766 holder number 20 comes along, and wants you to pay out the last 767 remaining 5 percent? And then what happens when patent holder number 21 768 comes along?</p> 769 770 <p>People in business say that this scenario is amusing but absurd, 771 because your business would fail long before you got there. They told 772 me that two or three such licenses would make your business fail. So 773 you'd never get to 20. They show up one by one, so you never know how 774 many more there are going to be.</p> 775 776 <p>Software patents are a mess. They're a mess for software 777 developers, but in addition they're a restriction on every computer 778 user because software patents restrict what you can do on your 779 computer.</p> 780 781 <p>This is very different from patents, for instance, on automobile 782 engines. These only restrict companies that make cars; they don't 783 restrict you and me. But software patents do restrict you and me, and 784 everybody who uses computers. So we can't think of them in purely 785 economic terms; we can't judge this issue purely in economic terms. 786 There's something more important at stake.</p> 787 788 <p>But even in economic terms, the system is self-defeating, because 789 its purpose is supposed to be to promote progress. Supposedly by 790 creating this artificial incentive for people to publish ideas, it's 791 going to help the field progress. But all it does is the exact 792 opposite, because the big job in software is not coming up with ideas, 793 it's implementing thousands of ideas together in one program. And 794 software patents obstruct that, so they're economically 795 self-defeating.</p> 796 797 <p>And there's even economic research showing that this is 798 so—showing how in a field with a lot of incremental innovation, 799 a patent system can actually reduce investment in R & D. And of 800 course, it also obstructs development in other ways. So even if we 801 ignore the injustice of software patents, even if we were to look at 802 it in the narrow economic terms that are usually proposed, it's still 803 harmful.</p> 804 805 <p>People sometimes respond by saying that “People in other 806 fields have been living with patents for decades, and they've gotten 807 used to it, so why should you be an exception?”</p> 808 809 <p>Now, that question has an absurd assumption. It's like saying, 810 “Other people get cancer, why shouldn't you?” I think 811 every time someone doesn't get cancer, that's good, regardless of what 812 happened to the others. That question is absurd because of its 813 presupposition that somehow we all have a duty to suffer the harm done 814 by patents.</p> 815 816 <p>But there is a sensible question buried inside it, and that 817 sensible question is “What differences are there between various 818 fields that might affect what is good or bad patent policy in those 819 fields?”</p> 820 821 <p>There is an important basic difference between fields in regard to 822 how many patents are likely to prohibit or cover parts of any one 823 product.</p> 824 825 <p>Now we have a naive idea in our minds which I'm trying to get rid 826 of, because it's not true. And it's that on any one product there is 827 one patent, and that patent covers the overall design of that product. 828 So if you design a new product, it can't be patented already, and you 829 will have an opportunity to get “the patent” on that 830 product.</p> 831 832 <p>That's not how things work. In the 1800s, maybe they did, but not 833 now. In fact, fields fall on a spectrum of how many patents [there 834 are] per product. The beginning of the spectrum is one, but no field 835 is like that today; fields are at various places on this spectrum.</p> 836 837 <p>The field that's closest to that is pharmaceuticals. A few decades 838 ago, there really was one patent per pharmaceutical, at least at any 839 time, because the patent covered the entire chemical formula of that 840 one particular substance. Back then, if you developed a new drug, you 841 could be sure it wasn't already patented by somebody else and you 842 could get the one patent on that drug.</p> 843 844 <p>But that's not how it works now. Now there are broader patents, so 845 now you could develop a new drug, and you're not allowed to make it 846 because somebody has a broader patent which covers it already.</p> 847 848 <p>And there might even be a few such patents covering your new drug 849 simultaneously, but there won't be hundreds. The reason is, our 850 ability to do biochemical engineering is so limited that nobody knows 851 how to combine so many ideas to make something that's useful in 852 medicine. If you can combine a couple of them you're doing pretty 853 well at our level of knowledge. But other fields involve combining 854 more ideas to make one thing.</p> 855 856 <p>At the other end of the spectrum is software, where we can combine 857 more ideas into one usable design than anybody else, because our field 858 is basically easier than all other fields. I'm presuming that the 859 intelligence of people in our field is the same as that of people in 860 physical engineering. It's not that we're fundamentally better than 861 they are; it's that our field is fundamentally easier, because we're 862 working with mathematics.</p> 863 864 <p>A program is made out of mathematical components, which have a 865 definition, whereas physical objects don't have a definition. The 866 matter does what it does, so through the perversity of matter, your 867 design may not work the way it “should” have worked. And that's just 868 tough. You can't say that the matter has a bug in it, and the 869 physical universe should get fixed. [Whereas] we [programmers] can 870 make a castle that rests on a mathematically thin line, and it stays 871 up because nothing weighs anything.</p> 872 873 <p>There're so many complications you have to cope with in physical 874 engineering that we don't have to worry about.</p> 875 876 <p>For instance, when I put an <code>if</code>-statement inside of 877 a <code>while</code>-loop, 878 </p> 879 880 <ul> 881 <li>I don't have to worry that if this <code>while</code>-loop repeats 882 at the wrong rate, the <code>if</code>-statement might start to 883 vibrate and it might resonate and crack;</li> 884 885 <li>I don't have to worry that if it resonates much faster—you 886 know, millions of times per second—that it might generate 887 radio frequency signals that might induce wrong values in other 888 parts of the program;</li> 889 890 <li>I don't have to worry that corrosive fluids from the environment 891 might seep in between the <code>if</code>-statement and 892 the <code>while</code>-statement and start eating away at them until 893 the signals don't pass anymore;</li> 894 895 <li>I don't have to worry about how the heat generated by my 896 <code>if</code>-statement is going to get out through 897 the <code>while</code>-statement so that it doesn't make 898 the <code>if</code>-statement burn out; and</li> 899 900 <li>I don't have to worry about how I would take out the broken 901 <code>if</code>-statement if it does crack, burn, or corrode, and 902 replace it with another <code>if</code>-statement to make the 903 program run again.</li> 904 </ul> 905 906 <p>For that matter, I don't have to worry about how I'm going to 907 insert the <code>if</code>-statement inside 908 the <code>while</code>-statement every time I produce a copy of the 909 program. I don't have to design a factory to make copies of my 910 program, because there are various general commands that will make 911 copies of anything.</p> 912 913 <p>If I want to make copies on CD, I just have to write a master; and 914 there's one program I can [use to] make a master out of anything, 915 write any data I want. I can make a master CD and write it and send 916 it off to a factory, and they'll duplicate whatever I send them. I 917 don't have to design a different factory for each thing I want to 918 duplicate.</p> 919 920 <p>Very often with physical engineering you have to do that; you have 921 to design products for manufacturability. Designing the factory may 922 even be a bigger job than designing the product, and then you may have 923 to spend millions of dollars to build the factory. So with all of 924 this trouble, you're not going to be able to put together so many 925 different ideas in one product and have it work.</p> 926 927 <p>A physical design with a million nonrepeating different design 928 elements is a gigantic project. A program with a million different 929 design elements, that's nothing. It's a few hundred thousand lines of 930 code, and a few people will write that in a few years, so it's not a 931 big deal. So the result is that the patent system weighs 932 proportionately heavier on us than it does on people in any other 933 field who are being held back by the perversity of matter.</p> 934 935 <p>A lawyer did a study of one particular large program, namely the 936 kernel Linux, which is used together with the GNU operating system 937 that I launched. This was five years ago now; he found 283 different 938 US patents, each of which appeared to prohibit some computation done 939 somewhere in the code of Linux. At the time I saw an article saying 940 that Linux was 0.25 percent of the whole system. So by multiplying 300 by 941 400 we can estimate the number of patents that would prohibit 942 something in the whole system as being around 100,000. This is a very 943 rough estimate only, and no more accurate information is available, 944 since trying to figure it out would be a gigantic task.</p> 945 946 <p>Now this lawyer did not publish the list of patents, because that 947 would have endangered the developers of Linux the kernel, putting them 948 in a position where the penalties if they were sued would be greater. 949 He didn't want to hurt them; he wanted to demonstrate how bad this 950 problem is, of patent gridlock.</p> 951 952 <p>Programmers can understand this immediately, but politicians 953 usually don't know much about programming; they usually imagine that 954 patents are basically much like copyrights, only somehow stronger. 955 They imagine that since software developers are not endangered by the 956 copyrights on their work, that they won't be endangered by the patents 957 on their work either. They imagine that, since when you write a 958 program you have the copyright, [therefore likewise] if you write a 959 program you have the patents also. This is false—so how do we 960 give them a clue what patents would really do? What they really do in 961 countries like the US?</p> 962 963 <p>I find it's useful to make an analogy between software and 964 symphonies. Here's why it's a good analogy.</p> 965 966 <p>A program or symphony combines many ideas. A symphony combines 967 many musical ideas. But you can't just pick a bunch of ideas and say 968 “Here's my combination of ideas, do you like it?” Because 969 in order to make them work you have to implement them all. You can't 970 just pick musical ideas and list them and say, “Hey, how do you 971 like this combination?” You can't hear that [list]. You have to 972 write notes which implement all these ideas together.</p> 973 974 <p>The hard task, the thing most of us wouldn't be any good at, is 975 writing all these notes to make the whole thing sound good. Sure, 976 lots of us could pick musical ideas out of a list, but we wouldn't 977 know how to write a good-sounding symphony to implement those ideas. 978 Only some of us have that talent. That's the thing that limits you. 979 I could probably invent a few musical ideas, but I wouldn't know how 980 to use them to any effect.</p> 981 982 <p>So imagine that it's the 1700s, and the governments of Europe 983 decide that they want to promote the progress of symphonic music by 984 establishing a system of musical idea patents, so that any musical 985 idea described in words could be patented.</p> 986 987 <p>For instance, using a particular sequence of notes as a motif could 988 be patented, or a chord progression could be patented, or a rhythmic 989 pattern could be patented, or using certain instruments by themselves 990 could be patented, or a format of repetitions in a movement could be 991 patented. Any sort of musical idea that could be described in words 992 would have been patentable.</p> 993 994 <p>Now imagine that it's 1800 and you're Beethoven, and you want to 995 write a symphony. You're going to find it's much harder to write a 996 symphony you don't get sued for than to write one that sounds good, 997 because you have to thread your way around all the patents that exist. 998 If you complained about this, the patent holders would say, “Oh, 999 Beethoven, you're just jealous because we had these ideas first. Why 1000 don't you go and think of some ideas of your own?”</p> 1001 1002 <p>Now Beethoven had ideas of his own. The reason he's considered a 1003 great composer is because of all of the new ideas that he had, and he 1004 actually used. And he knew how to use them in such a way that they 1005 would work, which was to combine them with lots of well-known ideas. 1006 He could put a few new ideas into a composition together with a lot of 1007 old and uncontroversial ideas. And the result was a piece that was 1008 controversial, but not so much so that people couldn't get used to 1009 it.</p> 1010 1011 <p>To us, Beethoven's music doesn't sound controversial; I'm told it 1012 was, when it was new. But because he combined his new ideas with a 1013 lot of known ideas, he was able to give people a chance to stretch a 1014 certain amount. And they could, which is why to us those ideas sound 1015 just fine. But nobody, not even a Beethoven, is such a genius that he 1016 could reinvent music from zero, not using any of the well-known ideas, 1017 and make something that people would want to listen to. And nobody is 1018 such a genius he could reinvent computing from zero, not using any of 1019 the well-known ideas, and make something that people want to use.</p> 1020 1021 <p>When the technological context changes so frequently, you end up 1022 with a situation where what was done 20 years ago is totally 1023 inadequate. Twenty years ago there was no World Wide Web. So, sure, 1024 people did a lot of things with computers back then, but what they 1025 want to do today are things that work with the World Wide Web. And 1026 you can't do that using only the ideas that were known 20 years ago. 1027 And I presume that the technological context will continue to change, 1028 creating fresh opportunities for somebody to get patents that give the 1029 shaft to the whole field.</p> 1030 1031 <p>Big companies can even do this themselves. For instance, a few 1032 years ago Microsoft decided to make a phony open standard for 1033 documents and to get it approved as a standard by corrupting the 1034 International Standards Organization, which they did. But they 1035 designed it using something that Microsoft had patented. Microsoft is 1036 big enough that it can start with a patent, design a format or 1037 protocol to use that patented idea (whether it's helpful or not), in 1038 such a way that there's no way to be compatible unless you use that 1039 same idea too. And then Microsoft can make that a de facto standard 1040 with or without help from corrupted standards bodies. Just by its 1041 weight it can push people into using that format, and that basically 1042 means that they get a stranglehold over the whole world. So we need 1043 to show the politicians what's really going on here. We need to show 1044 them why this is bad.</p> 1045 1046 <p>Now I've heard it said that the reason New Zealand is considering 1047 software patents is that one large company wants to be given some 1048 monopolies. To restrict everyone in the country so that one company 1049 will make more money is the absolute opposite of statesmanship.</p> 1050 1051 <p>So, at this point, I'd like to ask for questions.</p></dd> 1052 1053 <dt>Q.</dt> 1054 <dd>What is the alternative?</dd> 1055 1056 <dt>A.</dt> 1057 <dd>No software patents. I know that that works fine. I was in the 1058 field when there were no software patents. And that meant people 1059 developed software, and they distributed that software in various 1060 ways, and they didn't have to worry about getting sued by patent 1061 holders for doing it, so they were safe. Software patents don't solve 1062 a real problem, so we don't need to ask what other solution is 1063 there.</dd> 1064 1065 <dt>Q.</dt> 1066 <dd>How do the developers get rewarded?</dd> 1067 1068 <dt>A.</dt> 1069 <dd><p>Many ways. Software patents have nothing to do with that. 1070 Remember if you're a software developer, software patents don't help 1071 you get whatever you want to get.</p> 1072 1073 <p>Different software developers want different things. I developed 1074 some important software in the 1980s, and the reward I wanted was to 1075 see people using computers in freedom. And I got that reward, 1076 although not totally, not everybody has freedom. But software patents 1077 would only have stopped me.</p> 1078 1079 <p>Other people developed programs because they wanted money. 1080 Software patents threaten them, too, and still threaten them, because 1081 you're not going to make any money if patent holders demand that you 1082 give it all to them, or if they make you shut down.</p></dd> 1083 1084 <dt>Q.</dt> 1085 <dd>How do you prevent plagiarism and still…</dd> 1086 1087 <dt>A.</dt> 1088 <dd><p>Plagiarism has nothing to do with this issue. It has 1089 absolutely nothing to do with this issue.</p> 1090 1091 <p>Plagiarism means copying the text of a work and claiming to have 1092 written it yourself. But patents are not concerned with the text of 1093 any particular work. They simply have nothing to do with this.</p> 1094 1095 <p>If you write a work and this work embodies some ideas, which it 1096 always does, there's no reason to think that the patents covering 1097 those ideas would belong to you. They're more likely to belong to 1098 lots of others, and half of them to the megacorporations, and they can 1099 then all sue you. So you don't even have to worry [about plagiarism]; 1100 long before you get to the point where somebody else might copy it, 1101 you're going to be getting the shaft.</p> 1102 1103 <p>You are confusing patents with copyrights, I'm afraid. They have 1104 nothing in common. I've explained to you what the patent system does 1105 to software, but I think you don't believe me because you've heard 1106 what copyrights do and you're confusing the two, so these impressions 1107 you've got about what copyrights do, you're just assuming that patents 1108 do them also—and they don't. If you write some code, the 1109 copyright on that code would belong to you; but if your code 1110 implements ideas, if some of these ideas are patented, those patents 1111 belong to others who could then sue you.</p> 1112 1113 <p>You don't have to be afraid, with copyright, that when you write 1114 code yourself, that somebody else already has a copyright on it and 1115 can sue you, because copyright only restricts copying. In fact, even 1116 if you write something which is identical to what somebody else wrote, 1117 if you can prove you didn't copy it, that's a defense under copyright 1118 law, because copyright law is only concerned with copying. But 1119 copyright law is only concerned with the details of authorship of a 1120 work [i.e., not the ideas it embodies], so it has nothing in common 1121 with patent law in terms of what it deals with, and the effects are 1122 totally different.</p> 1123 1124 <p>Now I'm not in favor personally of all the things that people do 1125 with copyright law, I've criticized it. But it's a totally different, 1126 unrelated issue. If you think that patent law helps somebody who is 1127 developing software, it means that you have got a completely wrong 1128 picture of what patent law actually does.</p></dd> 1129 1130 <dt>Q.</dt> 1131 <dd>Don't get me wrong. I'm on your side.</dd> 1132 1133 <dt>A.</dt> 1134 <dd>OK, but still you've got a wrong picture. I'm not blaming you for 1135 it, because you've just been misinformed.</dd> 1136 1137 <dt>Q.</dt> 1138 <dd>If I'm writing software for commercial purposes, do I get good 1139 protection by treating it as a black box and keeping it secret?</dd> 1140 1141 <dt>A.</dt> 1142 <dd>I don't want to discuss that question because I'm not in favor of 1143 it, I think it's unethical to do that, but that's an unrelated 1144 issue.</dd> 1145 1146 <dt>Q.</dt> 1147 <dd>I understand that.</dd> 1148 1149 <dt>A.</dt> 1150 <dd>I don't want to change the subject and then praise something that 1151 I think is bad. But because it's a change of subject I'd rather not 1152 get into that.</dd> 1153 1154 <dt>Q.</dt> 1155 <dd>Our Foundation for Research, Science, and Technology, I think 1156 they're probably the equivalent of your National Science Foundation, 1157 provides grants for research and development and one of the things 1158 that they propose pretty actively is that ideas that they have funded 1159 should be secured if possible by patents.</dd> 1160 1161 <dt>A.</dt> 1162 <dd>That shouldn't be the case in software, because software ideas 1163 shouldn't be patentable ever by anyone. But what you are seeing 1164 there, more generally, is an example of the general corruption of our 1165 society by putting commercial aims above all others. Now I'm not a 1166 communist and I don't want to abolish business, but when it becomes 1167 business above all, every aspect of life oriented towards business, 1168 that is dangerous.</dd> 1169 1170 <dt>Q.</dt> 1171 <dd>So Richard, if you talk to the Foundation, perhaps you might 1172 propose that there are better ways for a small country like New 1173 Zealand to make money on software.</dd> 1174 1175 <dt>A.</dt> 1176 <dd>Software patents don't help anybody make money out of software. 1177 They mean that you're in danger of getting sued when you try.</dd> 1178 1179 <dt>Q.</dt> 1180 <dd>Which makes it difficult for New Zealand as a country to build an 1181 economic base using software as part of that.</dd> 1182 1183 <dt>A.</dt> 1184 <dd>Sorry, when you say “which” I don't know what you are 1185 referring to. Software patents will make it difficult for anyone. If 1186 New Zealand allows software patents, that will make it difficult in 1187 New Zealand for anybody to develop programs and distribute them, 1188 because you'll be in danger of getting sued. Software patents have 1189 nothing to do with developing a program and then putting it to some 1190 use.</dd> 1191 1192 <dt>Q.</dt> 1193 <dd>So New Zealand, in terms of its economic development, it would be 1194 better protected by having no software patents.</dd> 1195 1196 <dt>A.</dt> 1197 <dd><p>Yes. You see, each country has its own patent system, and they 1198 work independently, except that countries have signed up to a treaty 1199 that says, “If you have got a patent in that country, you can 1200 basically bring your application over here, and we'll judge it based 1201 on the year you applied for it over there.” But other than that, each 1202 country has its own criteria for what can be patented and has its own 1203 set of patents.</p> 1204 1205 <p>So the result is if the US allows software patents and New Zealand 1206 does not, that means that everybody in the world, including New 1207 Zealanders, can get US software patents and sue us poor Americans at 1208 home. But if New Zealand doesn't allow software patents that means 1209 that neither you nor we can get New Zealand software patents to sue 1210 you New Zealanders at home. You can be sure that almost all the 1211 software patents will belong to foreigners who will use them to 1212 basically kick any New Zealand software developers whenever they get 1213 the chance.</p></dd> 1214 1215 <dt>Q.</dt> 1216 <dd>Since the Hughes Aircraft case, I think it was in the 1990s</dd> 1217 1218 <dt>A.</dt> 1219 <dd>I don't know about that case.</dd> 1220 1221 <dt>Q.</dt> 1222 <dd>But basically New Zealand's had software patents. It's not like 1223 we're going into a field where we don't already have them, we do.</dd> 1224 1225 <dt>A.</dt> 1226 <dd><p>I don't know, but I'm told that there's a decision being made 1227 now at the legislative level of whether to allow them. But Patent 1228 Offices often respond to lobbying from megacorporations through 1229 WIPO.</p> 1230 1231 <p>WIPO, as you can tell from its name, which is the World 1232 Intellectual Property Organization, is up to no good, because any use 1233 of that term is spreading confusion. WIPO gets a lot of its funds 1234 from megacorporations, and uses those funds to bring officials from 1235 Patent Offices to idyllic resort destinations for training. What they 1236 train them to do is twist the law to allow patents in areas where 1237 they're not supposed to be allowed.</p> 1238 1239 <p>In many countries there are laws and court decisions which say that 1240 software as such can't be patented, algorithms can't be patented, or 1241 “mathematical” algorithms can't be patented (no one's 1242 quite sure what it means for an algorithm to be mathematical or not), 1243 and various other criteria which if interpreted naturally would rule 1244 out software patents, but the patent offices twist the law to allow 1245 them anyway.</p> 1246 1247 <p>For instance, a lot of things which practically speaking are 1248 software patents have the form where they describe a system involving 1249 a central processing unit, a memory, input/output facilities, 1250 instruction-fetching facilities, and means to perform this particular 1251 computation. In effect they've written explicitly into the patent all 1252 the parts of an ordinary computer, and then they say, “Well, 1253 this is a physical system which we would like to patent,” but 1254 really it's just patenting certain software on a computer. There are 1255 many subterfuges that they've used.</p> 1256 1257 <p>Patent Offices will generally try to twist the law into allowing 1258 more patents. In the US software patents were created by a court 1259 decision in 1982, in the Appeals Court that deals with all patent 1260 cases, which misunderstood a Supreme Court decision from the previous 1261 year, and misapplied it. Now it looks like that Appeals Court has 1262 finally changed its mind, and it's come to the conclusion that it was 1263 mistaken all along; and it looks like this decision will get rid of 1264 all software patents, unless the Supreme Court reverses it. The 1265 Supreme Court is now considering it, and within less than a year we 1266 should find out whether we've won or lost.</p></dd> 1267 1268 <dt>Q.</dt> 1269 <dd>Should that case be unsuccessful, is there any movement in the 1270 States to take a legislated solution?</dd> 1271 1272 <dt>A.</dt> 1273 <dd>Yes, and I been promoting this for about 19 years now. It's a 1274 battle that we fight over and over in various different 1275 countries.</dd> 1276 1277 <dt>Q.</dt> 1278 <dd>Where in your universe do you put the in I4i case?</dd> 1279 1280 <dt>A.</dt> 1281 <dd>I have no idea what that is.</dd> 1282 1283 <dt>Q.</dt> 1284 <dd>It's where Microsoft has basically almost had to shut down on 1285 selling Word, because they were found to have infringed a Canadian 1286 patent.</dd> 1287 1288 <dt>A.</dt> 1289 <dd>Oh, that one. That's just an example of how dangerous software 1290 patents are to all software developers. I don't like what Microsoft 1291 does, but that's an issue that's irrelevant for this purpose. It's 1292 not good that somebody can sue a software developer and say “I 1293 won't let you distribute such software.”</dd> 1294 1295 <dt>Q.</dt> 1296 <dd>Obviously we live in an imperfect world, and in some cases we run 1297 into the issue of software patents. Do you think that we should allow 1298 privileges for researchers to get around patents in the same way that 1299 copyright law allows research on copyright material?</dd> 1300 1301 <dt>A.</dt> 1302 <dd>No, it's a mistake to look for partial solutions, because we have 1303 a much better chance of establishing a full solution. Everybody 1304 involved in software development and distribution and use, except the 1305 ones in the megacorporations, when they see how dangerous software 1306 patents are, they will get behind total rejection of software patents. 1307 Whereas an exception for some special case will only win support from 1308 the people in that special case. These partial solutions are 1309 essentially distractions. People start by saying, “Oh, I'm sure 1310 we can't really solve the problem, so I give up on that. Let me 1311 propose a partial solution.” But these partial solutions don't 1312 make it safe to develop software.</dd> 1313 1314 <dt>Q.</dt> 1315 <dd>You wouldn't, however, oppose a partial solution that's not 1316 necessarily just directed at software patents, so you wouldn't oppose 1317 experimental use, which may be a good solution for the pharmaceutical 1318 patent.</dd> 1319 1320 <dt>A.</dt> 1321 <dd>I wouldn't oppose that.</dd> 1322 1323 <dt>Q.</dt> 1324 <dd>But what you're saying is that you don't think it's applicable to 1325 software, just to clarify.</dd> 1326 1327 <dt>A.</dt> 1328 <dd>Something that saves only a few of us, or only certain activities, 1329 or gets rid of half the software patents, that's analogous to saying, 1330 “Well, maybe we could clear part of the minefield, or maybe we 1331 could destroy half the mines in the minefield.” [That's an 1332 improvement] but that doesn't make it safe.</dd> 1333 1334 <dt>Q.</dt> 1335 <dd>So you've been speaking the same thing all around the world. How 1336 much uptake has there been? Have governments changed, or not adopted 1337 software patents?</dd> 1338 1339 <dt>A.</dt> 1340 <dd>Some have. In India a few years ago, there was an attempt to 1341 change patent law to explicitly allow software patents and it was 1342 dropped. A few years ago the US proposed a trade treaty, a free 1343 exploitation treaty, with Latin America. And it was blocked by the 1344 president of Brazil, who said no to software patents and another nasty 1345 thing relating to computers, and that killed the whole treaty. That's 1346 apparently the whole thing that the US wanted to impose on the rest of 1347 the continent. But these things don't stay dead; there are companies 1348 that have full-time staff looking for some way they can subvert some 1349 country or other.</dd> 1350 1351 <dt>Q.</dt> 1352 <dd>Is there any real hard data around what happens in economic terms 1353 in the innovation communities in countries that have essentially no 1354 software patents?</dd> 1355 1356 <dt>A.</dt> 1357 <dd><p>There isn't any. It's almost impossible to measure these 1358 things. Actually, I shouldn't say there isn't any. There is a 1359 little. It's very hard to measure the effect of the patent system, 1360 because you're comparing the real world with a counterfactual world, 1361 and there's no way to be sure what would happen.</p> 1362 1363 <p>What I can say is before there were software patents, there was 1364 lots of software development; not as much as there is now, because of 1365 course there were nowhere near as many computer users.</p> 1366 1367 <p>How many computer users were there in 1982, even in the US? It was 1368 a small fraction of the public. But there were software developers. 1369 They weren't saying, “We desperately want patents.” They 1370 weren't getting sued for patent infringement after they developed 1371 their programs. But there is a bit of [economic] research that I saw 1372 that apparently software patents resulted not in an increase in 1373 research, but [in] a shift of funds from research into 1374 patenting.</p></dd> 1375 1376 <dt>Q.</dt> 1377 <dd>Do you expect that there would be any interest in trade 1378 secrets?</dd> 1379 1380 <dt>A.</dt> 1381 <dd>No. Before there were software patents, a lot of software 1382 developers kept the details of their programs secret. But they 1383 usually wouldn't keep any of the general ideas secret, because that 1384 they realized that the big job in developing good software was not 1385 picking your general ideas, it was implementing a lot of ideas 1386 together. So they would publish, [or] they would let their employees 1387 publish, in scholarly journals any interesting new ideas that they'd 1388 had. So now, they'll patent those new ideas. It has very little to 1389 do with developing a useful program, and just letting people know some 1390 ideas doesn't give them a program. Besides, most of the ideas, the 1391 thousands of ideas you've combined in your program, are known 1392 anyway.</dd> 1393 1394 <dt>Q.</dt> 1395 <dd>To back that up, I was listening to an interview, one of the 1396 founders of PayPal was interviewed, and he said that he really felt 1397 strongly that his success was 5 percent idea and 95 percent execution, and that 1398 supports your point really well.</dd> 1399 1400 <dt>A.</dt> 1401 <dd>I agree.</dd> 1402 1403 <dt>SF:</dt> 1404 <dd>Excellent. Richard has here stickers which I believe are 1405 free</dd> 1406 1407 <dt>RMS:</dt> 1408 <dd>Gratis. And these [other items] are for sale.</dd> 1409 1410 <dt>SF:</dt> 1411 <dd>So you're welcome to come down. It's been a great debate—thank 1412 you Richard.</dd> 1413 1414 </dl> 1415 1416 <hr class="no-display" /> 1417 <div class="edu-note c"><p id="fsfs">This speech is published in 1418 <a href="https://shop.fsf.org/product/free-software-free-society/"><cite>Free 1419 Software, Free Society: The Selected Essays of Richard 1420 M. Stallman</cite></a>.</p></div> 1421 </div> 1422 1423 </div><!-- for id="content", starts in the include above --> 1424 <!--#include virtual="/server/footer.html" --> 1425 <div id="footer" role="contentinfo"> 1426 <div class="unprintable"> 1427 1428 <p>Please send general FSF & GNU inquiries to 1429 <a href="mailto:gnu@gnu.org"><gnu@gnu.org></a>. 1430 There are also <a href="/contact/">other ways to contact</a> 1431 the FSF. 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