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 <h2>Software Patents and Literary Patents</h2>
 
 <address class="byline">by <a href="https://stallman.org/">Richard
 Stallman</a></address>
 
 <p>
 When politicians consider the question of software patents, they are
 usually voting blind; not being programmers, they don't understand
 what software patents really do.  They often think patents are similar
 to copyright law (&ldquo;except for some details&rdquo;)&mdash;which
 is not the case.  For instance, when I publicly asked Patrick
 Devedjian, then Minister for Industry in France, how France would vote
 on the issue of software patents, Devedjian responded with an
 impassioned defense of copyright law, praising Victor Hugo for his
 role in the adoption of copyright.  (The misleading
 term <a href="/philosophy/not-ipr.html"> &ldquo;intellectual
 property&rdquo;</a> promotes this confusion&mdash;one of the reasons it
 should never be used.)
 </p>
 
 <p>
 Those who imagine effects like those of copyright law cannot grasp the
 disastrous effects of software patents.  We can use Victor Hugo as an
 example to illustrate the difference.
 </p>
 
 <p>
 A novel and a modern complex program have certain points in common:
 each one is large, and implements many ideas in combination.  So let's
 follow the analogy, and suppose that patent law had been applied to
 novels in the 1800s; suppose that states such as France had permitted
 the patenting of literary ideas.  How would this have affected Victor
 Hugo's writing?  How would the effects of literary patents compare
 with the effects of literary copyright?
 </p>
 
 <p>
 Consider Victor Hugo's novel <cite> Les Mis&eacute;rables</cite>.  Since he
 wrote it, the copyright belonged only to him.  He
 did not have to fear that some stranger could sue him for copyright
 infringement and win.  That was impossible, because copyright covers
 only the details of a work of authorship, not the ideas embodied in
 them, and it only restricts copying.  Hugo had not copied <cite>Les
 Mis&eacute;rables</cite>, so he was not in danger from copyright.
 </p>
 
 <p>
 Patents work differently.  Patents cover ideas; each patent is a
 monopoly on practicing some idea, which is described in the patent
 itself.  Here's one example of a hypothetical literary patent:
 </p>
 
 <ul>
     <li>Claim 1: a communication process that represents in the mind of a
     reader the concept of a character who has been in jail for a long
     time and becomes bitter towards society and humankind.</li>
 
     <li>Claim 2: a communication process according to claim 1, wherein
     said character subsequently finds moral redemption through the
     kindness of another.</li>
 
     <li>Claim 3: a communication process according to claims 1 and 2,
     wherein said character changes his name during the story.</li>
 </ul>
 
 <p>
 If such a patent had existed in 1862 when <cite>Les Mis&eacute;rables</cite> was
 published, the novel would have conflicted with all three claims,
 since all these things happened to Jean Valjean in the novel.  Victor
 Hugo could have been sued, and if sued, he would have lost.  The novel
 could have been prohibited&mdash;in effect, censored&mdash;by the
 patent holder.
 </p>
 
 <p>
 Now consider this hypothetical literary patent:
 </p>
 
 <ul>
     <li>Claim 1: a communication process that represents in the mind
   of a reader the concept of a character who has been in jail for a long
   time and subsequently changes his name.</li>
 </ul>
 
 <p>
 <cite>Les Mis&eacute;rables</cite> would have been prohibited by that patent too,
 because this description too fits the life story of Jean Valjean.  And
 here's another hypothetical patent:
 </p>
 
 <ul>
     <li>Claim 1: a communication process that represents in the mind
 of a reader the concept of a character who finds moral redemption and
 then changes his name.</li>
 </ul>
 
 <p>
 Jean Valjean would have been forbidden by this patent too.
 </p>
 
 <p>
 All three patents would cover, and prohibit, the life story of this one
 character.  They overlap, but they do not precisely duplicate each other,
 so they could all be valid simultaneously; all three patent holders
 could have sued Victor Hugo.  Any one of them could have prohibited
 publication of <cite>Les Mis&eacute;rables</cite>.
 </p>
 
 <p>
 This patent also could have been violated:
 </p>
 
 <ul>
     <li>Claim 1: a communication process that presents a character
 whose given name matches the last syllable of his family name.</li>
 </ul>
 
 <p>
 through the name &ldquo;Jean Valjean,&rdquo; but at least this patent
 would have been easy to avoid.
 </p>
 
 <p>
 You might think that these ideas are so simple that no patent office
 would have issued them.  We programmers are often amazed by the
 simplicity of the ideas that real software patents cover&mdash;for
 instance, the European Patent Office has issued a patent on the
 progress bar, and a patent on accepting payment via credit cards.
 These patents would be laughable if they were not so dangerous.
 </p>
 
 <p>
 Other aspects of <cite>Les Mis&eacute;rables</cite> could also have
 run afoul of
 patents.  For instance, there could have been a patent on a
 fictionalized portrayal of the Battle of Waterloo, or a patent on
 using Parisian slang in fiction.  Two more lawsuits.  In fact, there
 is no limit to the number of different patents that might have been
 applicable for suing the author of a work such as <cite>Les
 Mis&eacute;rables</cite>.  All the patent holders would say they deserved a
 reward for the literary progress that their patented ideas represent,
 but these obstacles would not promote progress in literature, they
 would only obstruct it.
 </p>
 
 <p>
 However, a very broad patent could have made all these issues
 irrelevant.  Imagine a patent with broad claims like these:
 </p>
 
 <ul>
     <li>A communication process structured with narration that continues
 through many pages.</li>
     <li>A narration structure sometimes resembling a fugue or
 improvisation.</li>
     <li>Intrigue articulated around the confrontation of specific
 characters, each in turn setting traps for the others.</li>
     <li>Narration that presents many layers of society.</li>
     <li>Narration that shows the wheels of hidden conspiracy.</li>
   </ul>
 
   <p> Who would the patent holders have been?  They could have been
 other novelists, perhaps Dumas or Balzac, who had written such
 novels&mdash;but not necessarily.  It isn't required to write a
 program to patent a software idea, so if our hypothetical literary
 patents follow the real patent system, these patent holders would not
 have had to write novels, or stories, or anything&mdash;except patent
 applications.  Patent parasite companies, businesses that produce
 nothing except threats and lawsuits, are booming nowadays.</p>
 
   <p> Given these broad patents, Victor Hugo would not have reached
 the point of asking what patents might get him sued for using the
 character of Jean Valjean, because he could not even have considered
 writing a novel of this kind.</p>
 
 <p>This analogy can help nonprogrammers see what software patents
 do. Software patents cover features, such as defining abbreviations in
 a word processor, or natural order recalculation in a spreadsheet.
 Patents cover algorithms that programs need to use.  Patents cover
 aspects of file formats, such as Microsoft's OOXML format.  MPEG 2
 video format is covered by 39 different US patents.</p>
 
 <p>Just as one novel could run afoul of many different literary patents at
 once, one program can be prohibited by many different patents at once.
 It is so much work to identify all the patents that appear to apply
 to a large program that only one such study has been done.  A 2004 study of
 Linux, the kernel of the GNU/Linux operating system, found 283
 different US software patents that seemed to cover it.  That is to
 say, each of these 283 different patents forbids some computational
 process found somewhere in the thousands of pages of source code of
 Linux.  At the time, Linux was around one percent of the whole
 GNU/Linux system.  How many patents might there be that a distributor
 of the whole system could be sued under?</p>
 
 <p>
 The way to prevent software patents from bollixing software
 development is simple: don't authorize them.  This ought to be easy,
 since most patent laws have provisions against software patents.  They
 typically say that &ldquo;software per se&rdquo; cannot be patented.
 But patent offices around the world are trying to twist the words and
 issuing patents on the ideas implemented in programs.  Unless this is
 blocked, the result will be to put all software developers in danger.
 </p>
 
 <div class="infobox extra" role="complementary">
 <hr />
 <p>The first version of this article was published in
 <cite>The Guardian</cite>, of London, on June 23, 2005.  It focused on
 the proposed European software patent directive.</p>
 </div>
 
 <div class="edu-note c"><p id="fsfs">This essay is published in
 <a href="https://shop.fsf.org/product/free-software-free-society/"><cite>Free
 Software, Free Society: The Selected Essays of Richard
 M. Stallman</cite></a>.</p></div>
 </div>
 
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 <p>Copyright &copy; 2005, 2009, 2021 Richard Stallman</p>
 
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