rms-patents.html (15840B)
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>Solutions to the Software Patent Problem 7 - GNU Project - Free Software Foundation</title> 8 <style type="text/css" media="screen"><!-- 9 #content i { color: #505050; } 10 --></style> 11 <!--#include virtual="/philosophy/po/rms-patents.translist" --> 12 <!--#include virtual="/server/banner.html" --> 13 <!--#include virtual="/philosophy/ph-breadcrumb.html" --> 14 <!--GNUN: OUT-OF-DATE NOTICE--> 15 <!--#include virtual="/server/top-addendum.html" --> 16 <div class="article reduced-width"> 17 <h2>Solutions to the Software Patent Problem</h2> 18 19 <address class="byline">by Richard Stallman</address> 20 21 <div class="infobox"> 22 <p>Speech given at the Locatelli Center, Santa Clara University, 23 in November 2012 (<a 24 href="//audio-video.gnu.org/video/keynote-what-is-the-problem.webm">video</a>, 25 <a href="//audio-video.gnu.org/video/#2012">metadata</a>)</p> 26 </div> 27 <hr class="thin" /> 28 29 <p><b>Andrew Chen:</b> Thank you, Eric.</p> 30 31 <p>My name is Andrew Chen. I teach patent law at the University of 32 North Carolina, and I had a previous life as a Computer Science 33 professor.</p> 34 35 <p>I have the easiest job today, which is introducing two men who need 36 no introduction. Richard Stallman, we know, is the founder of the 37 free software movement, co-founder of the League for Programming 38 Freedom, lead software architect for the GNU Project and author of 39 Emacs, which he's described as a text editor and also a way of life. 40 Something that I can agree with, having written my doctoral 41 dissertation using his program.</p> 42 43 <p>Dr Stallman has decided not to participate in the live streaming 44 facility for today. He explains that use of the streaming online 45 would require use of the Microsoft Silverlight plugin, which would 46 pressure people to use proprietary software. Dr Stallman considers it 47 wrong to pressure people to do that. He would like you to know that 48 he plans to make a recording of his presentation available at a later 49 time in either the Ogg Theora or WebM formats.</p> 50 51 <p>Dr Stallman.</p> 52 53 <p><i>[applause]</i></p> 54 55 <p><b>Richard Stallman:</b> Can the tech people please confirm that 56 the streaming is off?</p> 57 58 <p>OK, I think that's confirmation.</p> 59 60 <p>So, why are software patents bad? Or, “computational idea 61 patents” as I think we should really call them, because each one 62 is a monopoly on a computational idea. Most people, when you say 63 “software patents,” they think it's a question of 64 patenting a specific program. I'm sure all of you know that that's 65 not what those patents do, but most people don't know that, so, to try 66 to avoid misleading people, I call them “computational idea 67 patents.”</p> 68 69 <p>So, anyway, the reason these are bad is that they deny people the 70 freedom to use their computers as they wish and do their computing as 71 they wish, freedom that everyone must have. These patents put all 72 software developers in danger, and their users as well. A danger that 73 there is no reason we should stand for. So: we should protect 74 software from patents. Software needs patent protection: protection 75 from patents.</p> 76 77 <p>But most people don't know enough about what patents do to 78 appreciate why patents that can restrict software are so harmful. 79 Most people think that patents are like copyrights, which is not true 80 at all. The sum total of what they have in common is one sentence in 81 the Constitution, and that similarity is so little and abstract it has 82 nothing to do with the practical effects.</p> 83 84 <p>So, the last thing we should ever do is use the term 85 “intellectual property” that confuses not just these two 86 laws, but a bunch of other unrelated, disparate laws, that don't even 87 share one sentence in the Constitution with those two. So that term 88 spreads confusion whenever it's used and about eight years ago I 89 decided I should never use it and I have never used it since then. 90 It's surprisingly easy to avoid, because in general there's no reason 91 whatsoever to use it except that it's chic. And once you learn to 92 resist that, it's as easy as pie, just talk about one law, and then 93 you call that law by its name, and you're making a coherent, clear 94 statement.</p> 95 96 <p>So, I have to explain to people what patents do, and show them that 97 it's not at all like what copyrights do. An analogy is a good way to 98 do this. What can you say about programs? Well, they're large works, 99 full of details that all have to work together to get the desired 100 result. Well, what else is there like that? A novel, or a symphony. 101 <span class="gnun-split"></span> 102 So, imagine if the governments of Europe in the 1700s had had the 103 cockeyed idea of promoting the progress of symphonic music with a 104 system of “musical idea patents.” So, any musical idea 105 statable in words could have been patented. A melodic motif could 106 have been patented, or a series of chords, or a rhythmic pattern, or a 107 pattern of repetitions in a movement, or the use of certain 108 instruments while the rest of the orchestra is silent and a bunch of 109 other musical ideas that I can't think of, but maybe a composer 110 would.</p> 111 112 <p>So, now imagine it's 1800 and you're Beethoven and you want to 113 write a symphony. You're going to find that it's harder to write a 114 symphony that you don't get sued for than to write a good symphony. 115 Now, you'd probably have complained, and the patent holders would have 116 said “Oh, Beethoven, you're just jealous because we had these 117 ideas before you. Why don't you go think of some ideas of your 118 own?”<span class="gnun-split"></span> 119 Of course, Beethoven is considered a great composer 120 because he had lots of new ideas, and not only that, he knew how to 121 use them effectively. And that is: combined with lots of familiar 122 ideas, so that his pieces were merely shocking for a while, but people 123 could get used to them. They were not so alien and incomprehensible 124 that they got rejected. They shocked people for a while, people got 125 used to them, and now we don't see what's shocking any more, because 126 we're used to those ideas. Well, that's the proof that he used those 127 ideas well.</p> 128 129 <p>So, the idea that anyone could, or should have to, reinvent music 130 from zero, is absurd. Not even a Beethoven could do that, and it 131 would be silly to ask someone to try. It's the same with computing. 132 Just as a symphony implements many musical ideas together, but the 133 hard part is not picking a bunch of ideas. The hard part is 134 implementing them together with notes. It's the same with software. 135 A large program will implement thousands of ideas together. But the 136 hard part is not picking some ideas. It's easy to pick some ideas. 137 What's hard is to implement them all together and make it work 138 well.</p> 139 140 <p>So “computational idea patents” obstruct the hard and 141 big job by promoting resources that we get plenty of anyways. So it's 142 a misconceived system. Designed to give us help we don't want at the 143 cost of tremendous problems.</p> 144 145 <p>So what we need is to get rid of the problem. What is the problem? 146 The problem is: software developers and their users are threatened by 147 patents. They are in danger. How can you prevent that? Well, one 148 way is: don't issue patents that could affect software. That solution 149 works if you apply it from the beginning. If a country never issues 150 such patents, then its patent system doesn't attack software. OK, 151 it's a good solution. But it's not applicable if a country has 152 already issued hundreds of thousands of software patents.</p> 153 154 <p>Now, I've proposed that constitutions should explicitly say that 155 patent privileges can be reduced just as they can be increased. That 156 they are not in any sense somebody's property; they are privileges 157 given out by the government which can be changed at will. After all, 158 if you allow the government by legislation to increase them, it's 159 absurd to make this a one-way ratchet. But that's not in the US 160 Constitution.</p> 161 162 <p>So, what can we do? Well, we can ask courts to rule that all those 163 patents that restrict software were invalid from the beginning and 164 always have been invalid, and that gets rid of them all. However, 165 that's not something that people can lobby for. It's not something we 166 can say to officials, “do this because we want you 167 to.”</p> 168 169 <p>So, if we're going to look for a solution that we can get 170 implemented, what is there? Well, the only way I can see is to 171 legislate that software is a safe harbor. If it's software, then 172 you're safe. Circuits to do the same computation would be covered by 173 a patent, but if it's software, then you're safe. But what does that 174 mean? What does it mean for something to be software? Well, it runs 175 on a general purpose, universal machine. So first you make a 176 universal machine and then you put in the program to say what it 177 should do. Well, if the machine's only function is to be universal, 178 then the program is all that implements any specific, patented 179 idea.</p> 180 181 <p>So, that's the case I want to get at, and I'm trying to separate it 182 from a case like that in <cite>Diamond v. Diehr</cite> where there 183 was a patent for a system, a method of curing rubber. The 184 implementation involved a computer, but it also involved special 185 purpose hardware, not a general purpose universal machine, and that 186 special purpose hardware was crucial to carrying out the patented 187 technique.<span class="gnun-split"></span> 188 It wasn't actually a software technique. And, actually, I 189 read an article by Pamela Samuelson arguing that the CAFC twisted that 190 decision and basically got the quantifiers in the wrong order. That 191 the Supreme Court said, “the fact that there's a computer in 192 there somewhere doesn't automatically make it non-patentable,” 193 and the CAFC twisted that into “the computer makes it 194 patentable.”</p> 195 196 <p>Anyway, we might have some hope with the courts, but I'm proposing 197 a method that will separate the cases that we must protect from 198 non-computational idea patents that affect systems that might be 199 implemented with a computer in there somewhere. The precise words to 200 use? Well, the best I could come up with was: “software running 201 on generally used computing hardware.” We certainly want things 202 like smartphones to be covered; we don't want it to exclude anything 203 that has any kind of special-purpose hardware in there. 204 <span class="gnun-split"></span>The portable 205 phone obviously has specialised hardware to talk to the phone network, 206 but that shouldn't automatically mean that if it's running on a 207 portable phone, it's vulnerable to patents. Because that is a general 208 purpose computer and people use it for all sorts of things. But my 209 words, “generally used computing hardware,” they may not 210 be the best possible words. This is a subject that I think calls for 211 study, because we've got to look at each possible wording that might 212 be used and see which cases would be protected from patents and which 213 would be exposed to come up with the right method.</p> 214 215 <p>Now, every time I suggest a method to solve this problem, the first 216 thing people try to look for is how to half solve it instead. The 217 idea of really solving the problem shocks people because it strikes 218 them as radical. They think “I can't advocate something so 219 radical as to really solve this whole problem. I've got to look for 220 some partial solution that will only protect some software 221 developers.”<span class="gnun-split"></span> 222 Well, that's a mistake. It's a mistake a) because 223 it wouldn't do the whole job, but b) because it would be harder to get 224 it passed. There are lots of software developers and they are all 225 threatened and if we propose to protect them all, they will all have a 226 reason to support it. But if we propose to only protect some of them, 227 the rest will say “well, this doesn't do me any good, why should 228 I care?”</p> 229 230 <p>So, let's propose a real solution. And, besides, partial solutions 231 tend to be vulnerable to the problem that Boldrin and Levine have 232 written about very effectively, that it's easy for the pressures for 233 patents to stretch the boundaries if you give them any kind of 234 boundary that they can stretch. And this, by the way, is another 235 advantage of applying a change to suing people, rather than to what's 236 patentable. Because there, the criteria are just “what kind of 237 situation is this?” 238 <span class="gnun-split"></span> 239 It's harder to stretch those, and if they 240 tried, it would always be in a case against somebody who's going to be 241 fighting not to stretch it. So it's less vulnerable to being 242 distorted from an intended restriction of substance into an actual 243 requirement of form of patent applications, which tends to happen to 244 any kind of requirement about what patent applications have to look 245 like.</p> 246 247 <p>So, there I go.</p> 248 249 <p><i>[applause]</i></p> 250 251 <p><b>Andrew Chen:</b> Thank you, Dr Stallman.</p> 252 </div> 253 254 </div><!-- for id="content", starts in the include above --> 255 <!--#include virtual="/server/footer.html" --> 256 <div id="footer" role="contentinfo"> 257 <div class="unprintable"> 258 259 <p>Please send general FSF & GNU inquiries to 260 <a href="mailto:gnu@gnu.org"><gnu@gnu.org></a>. 261 There are also <a href="/contact/">other ways to contact</a> 262 the FSF. 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