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Permission is granted to copy and distribute translations +of this book from the original English into another language provided +the translation has been approved by the Free Software Foundation and +the copyright notice and this permission notice are preserved on all +copies. + +ISBN 978-0-9831592-0-9 +Cover design by Rob Myers. + +Cover photograph by Peter Hinely. + --><!-- Created on February 18, 2016 by texi2html 1.82 +texi2html was written by: + Lionel Cons <Lionel.Cons@cern.ch> (original author) + Karl Berry <karl@freefriends.org> + Olaf Bachmann <obachman@mathematik.uni-kl.de> + and many others. +Maintained by: Many creative people. +Send bugs and suggestions to <texi2html-bug@nongnu.org> +--><head><title>Free Software, Free Society, 2nd ed.: 25. The Danger of Software Patents</title><meta name="description" content="This is the second edition of Richard Stallman's collection of essays."><meta name="keywords" content="Free Software, Free Society, 2nd ed.: 25. The Danger of Software Patents"><meta name="resource-type" content="document"><meta name="distribution" content="global"><meta name="Generator" content="texi2html 1.82"><meta http-equiv="Content-Type" content="text/html; charset=utf-8"><style type="text/css"> +<!-- +a.summary-letter {text-decoration: none} +blockquote.smallquotation {font-size: smaller} +pre.display {font-family: serif} +pre.format {font-family: serif} +pre.menu-comment {font-family: serif} +pre.menu-preformatted {font-family: serif} +pre.smalldisplay {font-family: serif; font-size: smaller} +pre.smallexample {font-size: smaller} +pre.smallformat {font-family: serif; font-size: smaller} +pre.smalllisp {font-size: smaller} +span.roman {font-family:serif; font-weight:normal;} +span.sansserif {font-family:sans-serif; font-weight:normal;} +ul.toc {list-style: none} +--> +</style><link rel="stylesheet" type="text/css" href="../style.css"></head><body lang="en" bgcolor="#FFFFFF" text="#000000" link="#0000FF" vlink="#800080" alink="#FF0000"> + +<a name="DSP"></a> +<header><div id="logo"><a href="/"><img src="../gnu.svg" height="100" width="100"></a></div><h1>Free Software, Free Society, 2nd ed.</h1></header><section id="main"><a name="The-Danger-of-Software-Patents"></a> +<h1 class="chapter"> 25. The Danger of Software Patents </h1> + +<blockquote class="smallquotation"><p>This is an unedited transcript of the talk presented by Richard Stallman on 8 October 2009 at Victoria University of Wellington, in Wellington, New Zealand. +</p></blockquote> +<p>I’m most known for starting the free software movement and leading +development of the +<a name="index-GNU-_0028see-also-both-software-and-GNU_0029-5"></a> +GNU operating system—although most of the people +who use the system mistakenly believe it’s Linux and think it was +started by somebody else a decade later. But I’m not going to be +speaking about any of that today. I’m here to talk about a legal +danger to all software developers, distributors, and users: the danger +of patents—on computational ideas, computational techniques, an idea +for something you can do on a computer. +</p> +<a name="index-patents_002c-difference-between-copyrights-and"></a> +<p>Now, to understand this issue, the first thing you need to realize is +that patent law has nothing to do with copyright law—they’re totally +different. Whatever you learn about one of them, you can be sure it +doesn’t apply to the other. +</p> +<p>So, for example, any time a person makes a statement about +<a name="index-_0060_0060intellectual-property_002c_0027_0027-bias-and-fallacy-of-term-_0028see-also-ownership_0029-8"></a> +“intellectual property,” that’s spreading confusion, because it’s +lumping together not only these two laws but also at least a dozen +others. They’re all different, and the result is any statement which +purports to be about “intellectual property” is pure confusion—either +the person making the statement is confused, or the person is trying +to confuse others. But either way, whether it’s accidental or +malicious, it’s confusion. +</p> +<p>Protect yourself from this confusion by rejecting any statement which +makes use of that term. The only way to make thoughtful comments and +think clear thoughts about any one of these laws is to distinguish +it first from all the others, and talk or think about one particular +law, so that we can understand what it actually does and then form +conclusions about it. So I’ll be talking about patent law, and what +happens in those countries which have allowed patent law to restrict +software. +</p> +<p>So, what does a patent do? A patent is an explicit, government-issued +monopoly on using a certain idea. In the patent there’s a part called +the claims, which describe exactly what you’re not allowed to do +(although they’re written in a way you probably can’t understand). It’s +a struggle to figure out what those prohibitions actually mean, and +they may go on for many pages of fine print. +</p> +<p>So the patent typically lasts for 20 years, which is a fairly long +time in our field. Twenty years ago there was no World Wide Web—a +tremendous amount of the use of computers goes on in an area which +wasn’t even possible to propose 20 years ago. So of course everything +that people do on it is something that’s new since 20 years ago—at +least in some aspect it is new. So if patents had been applied for +we’d be prohibited from doing all of it, and we may be prohibited from +doing all of it in countries that have been foolish enough to have +such a policy. +</p> +<p>Most of the time, when people describe the function of the patent +system, they have a vested interest in the system. They may be patent +lawyers, or they may work in the Patent Office, or they may be in the +patent office of a megacorporation, so they want you to like the +system. +</p> +<a name="index-Economist"></a> +<p>The <cite>Economist</cite> once referred to the patent system as “a time-consuming +lottery.” If you’ve ever seen publicity for a lottery, you understand +how it works: they dwell on the very unlikely probability of winning, +and they don’t talk about the overwhelming likelihood of losing. In +this way, they intentionally and systematically present a biased +picture of what’s likely to happen to you, without actually lying +about any particular fact. +</p> +<p>It’s the same way for the publicity for the patent system: they talk +about what it’s like to walk down the street with a patent in your +pocket—or first of all, what it’s like to get a patent, then what +it’s like to have a patent in your pocket, and every so often you can +pull it out and point it at somebody and say, “Give me your money.” +</p> +<p>To compensate for their bias, I’m going to describe it from the other +side, the victim side—what it’s like for people who want to develop +or distribute or run software. You have to worry that any day someone +might walk up to you and point a patent at you and say, “Give me your +money.” +</p> +<p>If you want to develop software in a country that allows software +patents, and you want to work with patent law, what will you have to +do? +</p> +<p>You could try to make a list of all the ideas that one might be able +to find in the program that you’re about to write, aside from the fact +that you don’t know that when you start writing the program. [But] even +after you finish writing the program you wouldn’t be able to make such +a list. +</p> +<p>The reason is…in the process +you conceived of it in one particular way—you’ve got a mental +structure to apply to your design. And because of that, it will block +you from seeing other structures that somebody might use to understand +the same program—because you’re not coming to it fresh; you already +designed it with one structure in mind. Someone else who sees it for +the first time might see a different structure, which involves +different ideas, and it would be hard for you to see what those other +ideas are. But nonetheless they’re implemented in your program, and +those patents could prohibit your program, if those ideas are +patented. +</p> +<p>For instance, suppose there were graphical-idea patents and you wanted +to draw a square. Well, you would realize that if there was a patent +on a bottom edge, it would prohibit your square. You could put “bottom +edge” on the list of all ideas implemented in your drawing. But you +might not realize that somebody else with a patent on bottom corners +could sue you easily also, because he could take your drawing and turn +it by 45 degrees. And now your square is like this, and it has a +bottom corner. +</p> +<p>So you couldn’t make a list of all the ideas which, if patented, could +prohibit your program. +</p> +<p>What you might try to do is find out all the ideas that are +patented that might be in your program. Now you can’t do that +actually, because patent applications are kept secret for at least +18 months; and the result is the Patent Office could be +considering now whether to issue a patent, and they won’t tell you. +And this is not just an academic, theoretical possibility. +</p> +<a name="index-Compress"></a> +<p>For instance, in 1984 the Compress program was written, a program for +compressing files using the +<a name="index-LZW-_0028Lempel_002dZiv_002dWelch_0029-data-compression-algorithm-_0028see-also-patents_0029-2"></a> +<a name="index-patents_002c-LZW-data-compression-algorithm-1"></a> +data compression algorithm, and at +that time there was no patent on that algorithm for compressing +files. The author got the algorithm from an article in a journal. That +was when we thought that the purpose of computer science journals was +to publish algorithms so people could use them. +</p> +<p>He wrote this program, he released it, and in 1985 a patent was issued +on that algorithm. But the patent holder was cunning and didn’t +immediately go around telling people to stop using it. The patent +holder figured, “Let’s let everybody dig their grave deeper.” A few +years later they started threatening people; it became clear we +couldn’t use Compress, so I asked for people to suggest other +algorithms we could use for compressing files. +</p> +<p>And somebody wrote and said, “I developed another data compression +algorithm that works better, I’ve written a program, I’d like to give +it to you.” So we got ready to release it, and a week before it was +ready to be released, I read in the +<a name="index-New-York-Times-1"></a> +<cite>New York Times</cite> weekly patent +column, which I rarely saw—it’s a couple of times a year I might see +it—but just by luck I saw that someone had gotten a patent for +“inventing a new method of compressing data.” And so I said we had +better look at this, and sure enough it covered the program we were +about to release. But it could have been worse: the patent could have +been issued a year later, or two years later, or three years later, or +five years later. +</p> +<a name="index-gzip-1"></a> +<p>Anyway, someone else came up with another, even better compression +algorithm, which was used in the program gzip, and just about +everybody who wanted to compress files switched to gzip, so it sounds +like a happy ending. But you’ll hear more later. It’s not entirely +so happy. +</p> +<p>So, you can’t find out about the patents that are being considered +even though they may prohibit your work once they come out, but you +can find out about the already issued patents. They’re all published +by the Patent Office. The problem is you can’t read them all, because +there are too many of them. +</p> +<p>In the US I believe there are hundreds of thousands of +software patents; keeping track of them would be a tremendous job. So +you’re going to have to search for relevant patents. And you’ll find a +lot of relevant patents, but you won’t necessarily find them all. +</p> +<p>For instance, in the 80s and 90s, there was a patent on “natural order +recalculation” in spreadsheets. Somebody once asked me for a copy of +it, so I looked in our computer file which lists the patent numbers. +And then I pulled out the drawer to get the paper copy of this patent +and xeroxed it and sent it to him. And when he got it, he said, “I +think you sent me the wrong patent. This is something about +compilers.” So I thought maybe our file has the wrong number in it. +I looked in it again, and sure enough it said, “A method for compiling +formulas into object code.” So I started to read it to see if it was +indeed the wrong patent. I read the claims, and sure enough it was +the natural order recalculation patent, but it didn’t use those terms. +It didn’t use the term “spreadsheet.” In fact, what the patent +prohibited was dozens of different ways of implementing topological +sort—all the ways they could think of. But I don’t think it used the +term “topological sort.” +</p> +<p>So if you were writing a spreadsheet and you tried to find relevant +patents by searching, you might have found a lot of patents. But you +wouldn’t have found this one until you told somebody, “Oh, I’m working +on a spreadsheet,” and he said, “Oh, did you know those other +companies that are making spreadsheets are getting sued?” Then you +would have found out. +</p> +<p>Well, you can’t find all the patents by searching, but you can find a +lot of them. And then you’ve got to figure out what they mean, which +is hard, because patents are written in tortuous legal language which +is very hard to understand the real meaning of. So you’re going to +have to spend a lot of time talking with an expensive lawyer +explaining what you want to do in order to find out from the lawyer +whether you’re allowed to do it. +</p> +<a name="index-Heckel_002c-Paul"></a> +<p>Even the patent holders often can’t recognize just what their patents +mean. For instance, there’s somebody named Paul Heckel who released a +program for displaying a lot of data on a small screen, and based on a +couple of the ideas in that program he got a couple of patents. +</p> +<p>I once tried to find a simple way to describe what claim 1 of one of +those patents covered. I found that I couldn’t find any simpler way +of saying it than what was in the patent itself; and that sentence, I +couldn’t manage to keep it all in my mind at once, no matter how hard +I tried. +</p> +<a name="index-HyperCard"></a> +<p>And Heckel couldn’t follow it either, because when he saw HyperCard, +all he noticed was it was nothing like his program. It didn’t occur to +him that the way his patent was written it might prohibit HyperCard; +but his lawyer had that idea, so he threatened +<a name="index-Apple-_0028see-also-DRM_0029-1"></a> +Apple. And then he +threatened Apple’s customers, and eventually Apple made a settlement +with him which is secret, so we don’t know who really won. And this is +just an illustration of how hard it is for anybody to understand what +a patent does or doesn’t prohibit. +</p> +<p>In fact, I once gave this speech and Heckel was in the audience. And +at this point he jumped up and said, “That’s not true, I just didn’t +know the scope of my protection.” And I said, “Yeah, that’s what I +said,” at which point he sat down and that was the end of my +experience being heckled by Heckel. If I had said no, he probably +would have found a way to argue with me. +</p> +<p>Anyway, after a long, expensive conversation with a lawyer, the +lawyer will give you an answer like this: +</p> +<blockquote class="smallquotation"> +<p>If you do something in this area, you’re almost certain to lose a +lawsuit; if you do something in this area, there’s a considerable +chance of losing a lawsuit; and if you really want to be safe you’ve +got to stay out of this area. But there’s a sizeable element of chance +in the outcome of any lawsuit. +</p> +</blockquote> + +<p>So now that you have clear, predictable rules for doing business, what +are you actually going to do? Well, there are three things that you +could do to deal with the issue of any particular patent. One is to +avoid it, another is to get a license for it, and the third is to +invalidate it. So I’ll talk about these one by one. +</p> +<p>First, there’s the possibility of avoiding the patent, which means, +don’t implement what it prohibits. Of course, if it’s hard to tell +what it prohibits, it might be hard to tell what would suffice to +avoid it. +</p> +<a name="index-Sun-Microsystems-1"></a> +<a name="index-Kodak"></a> +<p>A couple of years ago Kodak sued Sun [for] using a patent for something +having to do with object-oriented programming, and Sun didn’t think it +was infringing that patent. But the court decided it was; and when +other people look at that patent they haven’t the faintest idea +whether that decision was right or not. No one can tell what that +patent does or doesn’t cover, but Sun had to pay hundreds of millions +of dollars because of violating a completely incomprehensible law. +</p> +<p>Sometimes you can tell what you need to avoid, and sometimes what +you need to avoid is an algorithm. +</p> +<a name="index-FFT-_0028fast-Fourier-transform_0029"></a> +<p>For instance, I saw a patent for something like the fast Fourier +transform, but it ran twice as fast. Well, if the ordinary FFT is fast +enough for your application then that’s an easy way to avoid this +other one. And most of the time that would work. Once in a while you +might be trying to do something where it runs doing FFT all the time, +and it’s just barely fast enough using the faster algorithm. And then +you can’t avoid it, although maybe you could wait a couple of years +for a faster computer. But that’s going to be rare. Most of the time +that patent will to be easy to avoid. +</p> +<a name="index-LZW-_0028Lempel_002dZiv_002dWelch_0029-data-compression-algorithm-_0028see-also-patents_0029-3"></a> +<a name="index-patents_002c-LZW-data-compression-algorithm-2"></a> + +<p>On the other hand, a patent on an algorithm may be impossible to +avoid. Consider the LZW data compression algorithm. Well, as I +explained, we found a better data compression algorithm, and everybody +who wanted to compress files switched to the program gzip which used +the better algorithm. And the reason is, if you just want to compress +the file and uncompress it later, you can tell people to use this +program to uncompress it; then you can use any program with any +algorithm, and you only care how well it works. +</p> +<a name="index-PostScript-language"></a> +<p>But LZW is used for other things, too; for instance the PostScript +language specifies operators for LZW compression and LZW +uncompression. It’s no use having another, better algorithm because +it makes a different format of data. They’re not interoperable. If you +compress it with the gzip algorithm, you won’t be able to uncompress +it using LZW. So no matter how good your other algorithm is, and no +matter what it is, it just doesn’t enable you to implement PostScript +according to the specs. +</p> +<p>But I noticed that users rarely ask their printers to compress +things. Generally the only thing they want their printers to do is to +uncompress; and I also noticed that both of the patents on the LZW +algorithm were written in such a way that if your system can only +uncompress, it’s not forbidden. These patents were written so that +they covered compression, and they had other claims covering both +compression and uncompression; but there was no claim covering only +uncompression. So I realized that if we implement only the +uncompression for LZW, we would be safe. And although it would not +satisfy the specification, it would please the users sufficiently; it +would do what they actually needed. So that’s how we barely squeaked +by avoiding the two patents. +</p> +<a name="index-GIF-1"></a> +<a name="index-PNG"></a> +<p>Now there is gif format, for images. That uses the LZW algorithm +also. It didn’t take long for people to define another image format, +called png, which stands for “Png’s Not Gif.” I think it uses the +gzip algorithm. And we started saying to people, “Don’t use gif +format, it’s dangerous. Switch to png.” And the users said, “Well, +maybe some day, but the browsers don’t implement it yet,” and the +browser developers said, “We may implement it someday, but there’s not +much demand from users.” +<a name="index-gzip-2"></a> +</p> +<p>Well, it’s pretty obvious what’s going on—gif was a de facto +standard. In effect, asking people to switch to a different format, +instead of their de facto standard, is like asking everyone in New +Zealand to speak Hungarian. People will say, “Well, yeah, I’ll learn to +speak it after everyone else does.” And so we never succeeded in +asking people to stop using gif, even though one of those patent +holders was going around to operators of web sites, +threatening to sue them unless they could prove that all of the gifs on +the site were made with authorized, licensed software. +</p> +<a name="index-JPEG"></a> +<p>So gif was a dangerous trap for a large part of our community. We +thought we had an alternative to gif format, namely jpeg, but then +somebody said, “I was just looking through my portfolio of patents”—I +think it was somebody that just bought patents and used them to +threaten people—and he said, “and I found that one of them covers jpeg +format.” +</p> +<p>Well, jpeg was not a de facto standard, it’s an official standard, +issued by a standards committee; and the committee had a lawyer too. +Their lawyer said he didn’t think that this patent actually covered +jpeg format. +</p> +<p>So who’s right? Well, this patent holder sued a bunch of companies, +and if there was a decision, it would have said who was right. But I +haven’t heard about a decision; I’m not sure if there ever was one. I +think they settled, and the settlement is almost certainly secret, +which means that it didn’t tell us anything about who’s right. +</p> +<p>These are fairly lightweight cases: one patent on jpeg, two patents +on the LZW algorithm used in gif. Now you might wonder how come there +are two patents on the same algorithm? It’s not supposed to happen, +but it did. And the reason is that the patent examiners can’t possibly +take the time to study every pair of things they might need to study +and compare, because they’re not allowed to take that much time. And +because algorithms are just mathematics, there’s no way you can narrow +down which applications and patents you need to compare. +</p> +<a name="index-patents_002c-LZW-data-compression-algorithm-3"></a> +<a name="index-LZW-_0028Lempel_002dZiv_002dWelch_0029-data-compression-algorithm-_0028see-also-patents_0029-4"></a> + +<p>You see, in physical engineering fields, they can use the physical +nature of what’s going on to narrow things down. For instance, in +chemical engineering, they can say, “What are the substances going in? +What are the substances coming out?” If two different [patent] +applications are different in that way, then they’re not the same +process so you don’t need to worry. But the same math can be +represented in ways that can look very different, and until you study +them both together, you don’t realize they’re talking about the same +thing. And, because of this, it’s quite common to see the same thing +get patented multiple times [in software]. +</p> +<p>Remember that program that was killed by a patent before we released +it? Well, that algorithm got patented twice also. In one little field +we’ve seen it happen in two cases that we ran into—the same algorithm +being patented twice. Well, I think my explanation tells you why that +happens. +</p> +<p>But one or two patents is a lightweight case. What about +<a name="index-MPEG_002d2-1"></a> +mpeg2, the +video format? I saw a list of over 70 patents covering that, and the +negotiations to arrange a way for somebody to license all those +patents took longer than developing the standard itself. The jpeg +committee wanted to develop a follow-on standard, and they gave +up. They said there were too many patents; there was no way to do it. +<a name="index-JPEG-1"></a> +</p> +<p>Sometimes it’s a feature that’s patented, and the only way to avoid that +patent is not to implement that feature. For instance, the users of +the word processor +<a name="index-Xywrite"></a> +Xywrite once got a downgrade in the mail, which +removed a feature. The feature was that you could define a list of +abbreviations. For instance, if you define +<a name="index-abbreviations_002c-patents-on"></a> +<a name="index-patents_002c-on-abbreviations"></a> +“exp” as an abbreviation +for “experiment,” then if you type “exp-space” or “exp-comma,” the “exp” +would change automatically to “experiment.” +</p> +<p>Then somebody who had a patent on this feature threatened them, and +they concluded that the only thing they could do was to take the +feature out. And so they sent all the users a downgrade. +</p> +<p>But they also contacted me, because my +<a name="index-Emacs_002c-GNU-7"></a> +<a name="index-GNU_002c-GNU-Emacs-7"></a> +Emacs editor had a feature like +that starting from the late 70s. And it was described in the Emacs +manual, so they thought I might be able to help them invalidate that +patent. Well, I’m happy to know I’ve had at least one patentable idea +in my life, but I’m unhappy that someone else patented it. +</p> +<p>Fortunately, in fact, that patent was eventually invalidated, and +partly on the strength of the fact that I had published using it +earlier. But in the meantime they had had to remove this feature. +</p> +<p>Now, to remove one or two features may not be a disaster. But when +you have to remove 50 features, you could do it, but people are likely +to say, “This program’s no good; it’s missing all the features I want.” +So it may not be a solution. And sometimes a patent is so broad that +it wipes out an entire field, like the patent on public-key +encryption, which in fact put public-key encryption basically off +limits for about ten years. +</p> +<p>So that’s the option of avoiding the patent—often possible, but +sometimes not, and there’s a limit to how many patents you can avoid. +</p> +<p>What about the next possibility, of getting a license for the patent? +</p> +<a name="index-games_002c-patents-and"></a> +<p>Well, the patent holder may not offer you a license. It’s entirely up +to him. He could say, “I just want to shut you down.” I once got a +letter from somebody whose family business was making casino games, +which were of course computerized, and he had been threatened by +a patent holder who wanted to make his business shut down. He sent me +the patent. Claim 1 was something like “a network with a multiplicity +of computers, in which each computer supports a multiplicity of games, +and allows a multiplicity of game sessions at the same time.” +</p> +<a name="index-universities-4"></a> +<p>Now, I’m sure in the 1980s there was a university that set up a room +with a network of workstations, and each workstation had some kind of +windowing facility. All they had to do was to install multiple games +and it would be possible to display multiple game sessions at +once. This is so trivial and uninteresting that nobody would have +bothered to publish an article about doing it. No one would have been +interested in publishing an article about doing it, but it was worth +patenting it. If it had occurred to you that you could get a monopoly +on this trivial thing, then you could shut down your competitors with +it. +<a name="index-games_002c-patents-and-1"></a> +</p> +<p>But why does the Patent Office issue so many patents that seem absurd +and trivial to us? +</p> +<p>It’s not because the patent examiners are stupid, it’s because they’re +following a system, and the system has rules, and the rules lead to +this result. +</p> +<p>You see, if somebody has made a machine that does something once, and +somebody else designs a machine that will do the same thing, but N +times, for us that’s a <tt>for</tt>-loop, but for the Patent Office that’s an +invention. If there are machines that can do A, and there are +machines that can do B, and somebody designs a machine that can do A +or B, for us that’s an <tt>if-then-else</tt> statement, but for the Patent +Office that’s an invention. So they have very low standards, and they +follow those standards; and the result is patents that look absurd and +trivial to us. Whether they’re legally valid I can’t say. But every +programmer who sees them laughs. +</p> +<p>In any case, I was unable to suggest anything he could do to help +himself, and he had to shut down his business. But most patent holders +will offer you a license. It’s likely to be rather expensive. +</p> +<p>But there are some software developers that find it particularly easy +to get licenses, most of the time. Those are the megacorporations. In +any field the megacorporations generally own about half the patents, +and they cross-license each other, and they can make anybody else +cross-license if he’s really producing anything. The result is that +they end up painlessly with licenses for almost all the patents. +</p> +<a name="index-IBM"></a> +<a name="index-patents_002c-IBM-and"></a> +<a name="index-Think-magazine"></a> +<p>IBM wrote an article in its house magazine, <cite>Think</cite> magazine—I think +it’s issue 5, 1990—about the benefit IBM got from its almost 9,000 US +patents at the time (now it’s up to 45,000 or more). They said that +one of the benefits was that they collected money, but the main +benefit, which they said was perhaps an order of magnitude greater, +was “getting access to the patents of others,” namely cross-licensing. +</p> +<p>What this means is since IBM, with so many patents, can make almost +everybody give them a cross-license, IBM avoids almost all the grief +that the patent system would have inflicted on anybody else. So that’s +why IBM wants software patents. That’s why the megacorporations in +general want software patents, because they know that by +cross-licensing, they will have a sort of exclusive club on top of a +mountain peak. And all the rest of us will be down here, and there’s +no way we can get up there. You know, if you’re a genius, you might +start up a small company and get some patents, but you’ll never get +into IBM’s league, no matter what you do. +</p> +<p>Now a lot of companies tell their employees, “Get us patents so we can +defend ourselves” and they mean, “use them to try to get +cross-licensing,” but it just doesn’t work well. It’s not an effective +strategy if you’ve got a small number of patents. +</p> +<p>Suppose you’ve got three patents. One points there, one points there, +and one points there, and somebody over there points a patent at you. +Well, your three patents don’t help you at all, because none of them +points at him. On the other hand, sooner or later, somebody in the +company is going to notice that this patent is actually pointing at +some people, and [the company] could threaten them and squeeze money +out of them—never mind that those people didn’t attack this company. +</p> +<p>So if your employer says to you, “We need some patents to defend +ourselves, so help us get patents,” I recommend this response: +</p> +<blockquote class="smallquotation"> +<p>Boss, I trust you and I’m sure you would only use those patents to +defend the company if it’s attacked. But I don’t know who’s going to +be the CEO of this company in five years. For all I know, it might get +acquired by Microsoft. So I really can’t trust the company’s word to +only use these patents for defense unless I get it in writing. Please +put it in writing that any patents I provide for the company will only +be used for self-defense and collective security, and not for +repression, and then I’ll be able to get patents for the company with +a clean conscience. +</p> +</blockquote> + +<p>It would be most interesting to raise this not just in private with +your boss, but also on the company’s discussion list. +</p> +<p>The other thing that could happen is that the company could fail and +its assets could be auctioned off, including the patents; and the +patents will be bought by someone who means to use them to do +something nasty. +</p> +<p>This cross-licensing practice is very important to understand, because +this is what punctures the argument of the software patent advocates +who say that software patents are needed to protect the starving +genius. They give you a scenario which is a series of unlikelihoods. +</p> +<p>So let’s look at it. According to this scenario, there’s a brilliant +designer of whatever, who’s been working for years by himself in his +attic coming up with a better way to do whatever it is. And now that +it’s ready, he wants to start a business and mass-produce this thing; +and because his idea is so good his company will inevitably succeed— +except for one thing: the big companies will compete with him and take +all his market the away. And because of this, his business will almost +certainly fail, and then he will starve. +</p> +<p>Well, let’s look at all the unlikely assumptions here. +</p> +<p>First of all, that he comes up with this idea working by +himself. That’s not very likely. In a high-tech field, most progress +is made by people working in a field, doing things and talking with +people in the field. But I wouldn’t say it’s impossible, not that one +thing by itself. +</p> +<p>But anyway the next supposition is that he’s going to start a business +and that it’s going to succeed. Well, just because he’s a brilliant +engineer doesn’t mean that he’s any good at running a business. Most +new businesses fail; more than 95 percent of them, I think, fail within a few +years. So that’s probably what’s going to happen to him, no matter +what. +</p> +<p>Ok, let’s assume that in addition to being a brilliant engineer who +came up with something great by himself, he’s also talented at running +businesses. If he has a knack for running businesses, then maybe his +business won’t fail. After all, not all new businesses fail, there are +a certain few that succeed. Well, if he understands business, then +instead of trying to go head to head with large companies, he might +try to do things that small companies are better at and have a better +chance of succeeding. He might succeed. But let’s suppose it fails +anyway. If he’s so brilliant and has a knack for running businesses, +I’m sure he won’t starve, because somebody will want to give him a +job. +</p> +<p>So a series of unlikelihoods—it’s not a very plausible scenario. But +let’s look at it anyway. +</p> +<p>Because where they go from there is to say the patent system will +“protect” our starving genius, because he can get a patent on this +technique. And then when IBM wants to compete with him, he says, +“IBM, you can’t compete with me, because I’ve got this patent,” and +IBM says, “Oh, no, not again!” +</p> +<p>Well, here’s what really happens. +</p> +<p>IBM says, “Oh, how nice, you have a patent. Well, we have this patent, +and this patent, and this patent, and this patent, and this patent, +all of which cover other ideas implemented in your product, and if you +think you can fight us on all those, we’ll pull out some more. So +let’s sign a cross-license agreement, and that way nobody will get +hurt.” Now since we’ve assumed that our genius understands business, +he’s going to realize that he has no choice. He’s going to sign the +cross-license agreement, as just about everybody does when IBM demands +it. And then this means that IBM will get “access” to his patent, +meaning IBM would be free to compete with him just as if there were no +patents, which means that the supposed benefit that they claim he +would get by having this patent is not real. He won’t get this +benefit. +</p> +<p>The patent might “protect” him from competition from you or me, but +not from IBM—not from the very megacorporations which the scenario +says are the threat to him. You know in advance that there’s got to +be a flaw in this reasoning when people who are lobbyists for +megacorporations recommend a policy supposedly because it’s going to +protect their small competitors from them. If it really were going to +do that, they wouldn’t be in favor of it. But this explains why +[software patents] won’t do it. +</p> +<p>Even IBM can’t always do this, because there are companies that we +refer to as patent trolls or patent parasites, and their only business +is using patents to squeeze money out of people who really make +something. +</p> +<p>Patent lawyers tell us that it’s really wonderful to have patents in +your field, but they don’t have patents in their field. +There are no patents on how to send or write a threatening letter, no +patents on how to file a lawsuit, and no patents on how to persuade a +judge or jury, so even IBM can’t make the patent trolls +cross-license. But IBM figures, “Our competition will have to pay them +too; this is just part of the cost of doing business, and we can live +with it.” IBM and the other megacorporations figure that the general +dominion over all activity that they get from their patents is good +for them, and paying off the trolls they can live with. So that’s why +they want software patents. +<a name="index-IBM-1"></a> +<a name="index-patents_002c-IBM-and-1"></a> +</p> +<p>There are also certain software developers who find it particularly +difficult to get a patent license, and those are the developers of +free software. The reason is that the usual patent license has +conditions we can’t possibly fulfill, because usual patent licenses +demand a payment per copy. But when software gives users the freedom +to distribute and make more copies, we have no way to count the copies +that exist. +</p> +<p>If someone offered me a patent license for a payment of one-millionth +of a dollar per copy, the total amount of money I’d have to pay maybe +is in my pocket now. Maybe it’s $50, but I don’t know if it’s +$50, or $49, or what, because there’s no way I can count the +copies that people have made. +</p> +<p>A patent holder doesn’t have to demand a payment per copy; a patent +holder could offer you a license for a single lump sum, but those lump +sums tend to be big, like US$100,000. +</p> +<p>And the reason that we’ve been able to develop so much +freedom-respecting software is [that] we can develop software without +money, but we can’t pay a lot of money without money. If we’re forced +to pay for the privilege of writing software for the public, we won’t +be able to do it very much. +</p> +<p>That’s the possibility of getting a license for the patent. The other +possibility is to invalidate the patent. If the country considers +software patents to be basically valid, and allowed, the only question +is whether that particular patent meets the criteria. It’s only +useful to go to court if you’ve got an argument to make that might +prevail. +</p> +<p>What would that argument be? You have to find evidence that, years +ago, before the patent was applied for, people knew about the same +idea. And you’d have to find things today that demonstrate that they +knew about it publicly at that time. So the dice were cast years ago, +and if they came up favorably for you, and if you can prove that fact +today, then you have an argument to use to try to invalidate the +patent. And it might work. +</p> +<p>It might cost you a lot of money to go through this case, and as a +result, a probably invalid patent is a very frightening weapon to be +threatened with if you don’t have a lot of money. There are people who +can’t afford to defend their rights—lots of them. The ones who can +afford it are the exception. +</p> +<p>These are the three things that you might be able to do about each +patent that prohibits something in your program. The thing is, whether +each one is possible depends on different details of the +circumstances, so some of the time, none of them is possible; and when +that happens, your project is dead. +</p> +<p>But lawyers in most countries tell us, “Don’t try to find the patents +in advance,” and the reason is that the penalty for infringement is +bigger if you knew about the patent. So what they tell you is “Keep +your eyes shut. Don’t try to find out about the patents, just go +blindly taking your design decisions, and hope.” +</p> +<p>And of course, with each single design decision, you probably don’t +step on a patent. Probably nothing happens to you. But there are so many +steps you have to take to get across the minefield, it’s very unlikely +you will get through safely. And of course, the patent holders don’t +all show up at the same time, so you don’t know how many there are +going to be. +</p> +<p>The patent holder of the natural order recalculation patent was +demanding 5 percent of the gross sales of every spreadsheet. You could +imagine paying for a few such licenses, but what happens when patent +holder number 20 comes along, and wants you to pay out the last +remaining 5 percent? And then what happens when patent holder number 21 comes +along? +</p> +<p>People in business say that this scenario is amusing but absurd, +because your business would fail long before you got there. They told +me that two or three such licenses would make your business fail. So +you’d never get to 20. They show up one by one, so you never know how +many more there are going to be. +</p> +<p>Software patents are a mess. They’re a mess for software developers, +but in addition they’re a restriction on every computer user because +software patents restrict what you can do on your computer. +</p> +<p>This is very different from patents, for instance, on automobile +engines. These only restrict companies that make cars; they don’t +restrict you and me. But software patents do restrict you and me, and +everybody who uses computers. So we can’t think of them in purely +economic terms; we can’t judge this issue purely in economic +terms. There’s something more important at stake. +</p> +<a name="index-patents_002c-economically-self_002ddefeating"></a> +<p>But even in economic terms, the system is self-defeating, because its +purpose is supposed to be to promote progress. Supposedly by creating +this artificial incentive for people to publish ideas, it’s going to +help the field progress. But all it does is the exact opposite, +because the big job in software is not coming up with ideas, it’s +implementing thousands of ideas together in one program. And software +patents obstruct that, so they’re economically self-defeating. +</p> +<p>And there’s even economic research showing that this is so—showing +how in a field with a lot of incremental innovation, a patent system +can actually reduce investment in R & D. And of course, it also +obstructs development in other ways. So even if we ignore the +injustice of software patents, even if we were to look at it in the +narrow economic terms that are usually proposed, it’s still harmful. +</p> +<p>People sometimes respond by saying that “People in other fields have +been living with patents for decades, and they’ve gotten used to it, +so why should you be an exception?” +</p> +<p>Now, that question has an absurd assumption. It’s like saying, “Other +people get cancer, why shouldn’t you?” I think every time someone +doesn’t get cancer, that’s good, regardless of what happened to the +others. That question is absurd because of its presupposition that +somehow we all have a duty to suffer the harm done by patents. +</p> +<p>But there is a sensible question buried inside it, and that sensible +question is “What differences are there between various fields that +might affect what is good or bad patent policy in those fields?” +</p> +<p>There is an important basic difference between fields in regard to how +many patents are likely to prohibit or cover parts of any one +product. +</p> +<p>Now we have a naive idea in our minds which I’m trying to get rid of, +because it’s not true. And it’s that on any one product there is one +patent, and that patent covers the overall design of that product. So +if you design a new product, it can’t be patented already, and you +will have an opportunity to get “the patent” on that product. +</p> +<p>That’s not how things work. In the 1800s, maybe they did, but not +now. In fact, fields fall on a spectrum of how many patents [there +are] per product. The beginning of the spectrum is one, but no field +is like that today; fields are at various places on this spectrum. +</p> +<p>The field that’s closest to that is pharmaceuticals. A few decades +ago, there really was one patent per pharmaceutical, at least at any +time, because the patent covered the entire chemical formula of that +one particular substance. Back then, if you developed a new drug, you +could be sure it wasn’t already patented by somebody else and you +could get the one patent on that drug. +</p> +<p>But that’s not how it works now. Now there are broader patents, so +now you could develop a new drug, and you’re not allowed to make it +because somebody has a broader patent which covers it already. +</p> +<p>And there might even be a few such patents covering your new drug +simultaneously, but there won’t be hundreds. The reason is, our +ability to do biochemical engineering is so limited that nobody knows +how to combine so many ideas to make something that’s useful in +medicine. If you can combine a couple of them you’re doing pretty +well at our level of knowledge. But other fields involve combining +more ideas to make one thing. +</p> +<p>At the other end of the spectrum is software, where we can combine +more ideas into one usable design than anybody else, because our field +is basically easier than all other fields. I’m presuming that the +intelligence of people in our field is the same as that of people in +physical engineering. It’s not that we’re fundamentally better than +they are; it’s that our field is fundamentally easier, because we’re +working with mathematics. +</p> +<p>A program is made out of mathematical components, which have a +definition, whereas physical objects don’t have a definition. The +matter does what it does, so through the perversity of matter, your +design may not work the way it “should” have worked. And that’s just +tough. You can’t say that the matter has a bug in it, and the +physical universe should get fixed. [Whereas] we [programmers] can +make a castle that rests on a mathematically thin line, and it stays +up because nothing weighs anything. +</p> +<p>There’re so many complications you have to cope with in physical +engineering that we don’t have to worry about. +</p> +<p>For instance, when I put an <code>if</code>-statement inside of a <code>while</code>-loop, +</p> +<ul><li> +I don’t have to worry that if this <code>while</code>-loop repeats at the wrong + rate, the <code>if</code>-statement might start to vibrate and it might resonate + and crack; + +</li><li> +I don’t have to worry that if it resonates much faster—you know, + millions of times per second—that it might generate radio frequency + signals that might induce wrong values in other parts of the + program; + +</li><li> +I don’t have to worry that corrosive fluids from the environment + might seep in between the <code>if</code>-statement and the <code>while</code>-statement and + start eating away at them until the signals don’t pass anymore; + +</li><li> +I don’t have to worry about how the heat generated by my + <code>if</code>-statement is going to get out through the <code>while</code>-statement so that + it doesn’t make the <code>if</code>-statement burn out; and + +</li><li> +I don’t have to worry about how I would take out the broken + <code>if</code>-statement if it does crack, burn, or corrode, and replace it with + another <code>if</code>-statement to make the program run again. + +</li></ul><p>For that matter, I don’t have to worry about how I’m going to insert +the <code>if</code>-statement inside the <code>while</code>-statement every time I produce a +copy of the program. I don’t have to design a factory to make copies +of my program, because there are various general commands that will +make copies of anything. +</p> +<p>If I want to make copies on CD, I just have to write a master; and +there’s one program I can [use to] make a master out of anything, +write any data I want. I can make a master CD and write it and send +it off to a factory, and they’ll duplicate whatever I send them. I +don’t have to design a different factory for each thing I want to +duplicate. +</p> +<p>Very often with physical engineering you have to do that; you have to +design products for manufacturability. Designing the factory may even +be a bigger job than designing the product, and then you may have to +spend millions of dollars to build the factory. So with all of this +trouble, you’re not going to be able to put together so many different +ideas in one product and have it work. +</p> +<p>A physical design with a million nonrepeating different design +elements is a gigantic project. A program with a million different +design elements, that’s nothing. It’s a few hundred thousand lines of +code, and a few people will write that in a few years, so it’s not a +big deal. So the result is that the patent system weighs +proportionately heavier on us than it does on people in any other +field who are being held back by the perversity of matter. +</p> +<a name="index-Linux-kernel-3"></a> +<a name="index-kernel_002c-Linux-3"></a> +<p>A lawyer did a study of one particular large program, namely the +kernel Linux, which is used together with the +<a name="index-GNU-_0028see-also-both-software-and-GNU_0029-6"></a> +GNU operating system +that I launched. This was five years ago now; he found 283 different +US patents, each of which appeared to prohibit some computation done +somewhere in the code of Linux. At the time I saw an article saying +that Linux was 0.25 percent of the whole system. So by multiplying 300 by 400 +we can estimate the number of patents that would prohibit something in +the whole system as being around 100,000. This is a very rough +estimate only, and no more accurate information is available, since +trying to figure it out would be a gigantic task. +</p> +<p>Now this lawyer did not publish the list of patents, because that +would have endangered the developers of Linux the kernel, putting them +in a position where the penalties if they were sued would be +greater. He didn’t want to hurt them; he wanted to demonstrate how bad +this problem is, of patent gridlock. +<a name="index-Linux-kernel-4"></a> +<a name="index-kernel_002c-Linux-4"></a> +</p> +<a name="index-development_002c-patents"></a> +<a name="index-patents_002c-difference-between-copyrights-and-1"></a> +<a name="index-copyright_002c-difference-between-patents-and"></a> +<p>Programmers can understand this immediately, but politicians usually +don’t know much about programming; they usually imagine that patents +are basically much like copyrights, only somehow stronger. They +imagine that since software developers are not endangered by the +copyrights on their work, that they won’t be endangered by the patents +on their work either. They imagine that, since when you write a +program you have the copyright, [therefore likewise] if you write a +program you have the patents also. This is false—so how do we give +them a clue what patents would really do? What they really do in +countries like the US? +</p> +<p>I find it’s useful to make an analogy between software and +symphonies. Here’s why it’s a good analogy. +</p> +<p>A program or symphony combines many ideas. A symphony combines many +musical ideas. But you can’t just pick a bunch of ideas and say +“Here’s my combination of ideas, do you like it?” Because in order to +make them work you have to implement them all. You can’t just pick +musical ideas and list them and say, “Hey, how do you like this +combination?” You can’t hear that [list]. You have to write notes +which implement all these ideas together. +</p> +<p>The hard task, the thing most of us wouldn’t be any good at, is +writing all these notes to make the whole thing sound good. Sure, lots +of us could pick musical ideas out of a list, but we wouldn’t know how +to write a good-sounding symphony to implement those ideas. Only some +of us have that talent. That’s the thing that limits you. I could +probably invent a few musical ideas, but I wouldn’t know how to use +them to any effect. +</p> +<p>So imagine that it’s the 1700s, and the governments of Europe decide +that they want to promote the progress of symphonic music by +establishing a system of musical idea patents, so that any musical +idea described in words could be patented. +</p> +<p>For instance, using a particular sequence of notes as a motif could be +patented, or a chord progression could be patented, or a rhythmic +pattern could be patented, or using certain instruments by themselves +could be patented, or a format of repetitions in a movement could be +patented. Any sort of musical idea that could be described in words +would have been patentable. +</p> +<a name="index-Beethoven_002c-Ludwig-van"></a> +<p>Now imagine that it’s 1800 and you’re Beethoven, and you want to write +a symphony. You’re going to find it’s much harder to write a symphony +you don’t get sued for than to write one that sounds good, because you +have to thread your way around all the patents that exist. If you +complained about this, the patent holders would say, “Oh, Beethoven, +you’re just jealous because we had these ideas first. Why don’t you go +and think of some ideas of your own?” +</p> +<p>Now Beethoven had ideas of his own. The reason he’s considered a great +composer is because of all of the new ideas that he had, and he +actually used. And he knew how to use them in such a way that they +would work, which was to combine them with lots of well-known +ideas. He could put a few new ideas into a composition together with a +lot of old and uncontroversial ideas. And the result was a piece that +was controversial, but not so much so that people couldn’t get used to +it. +</p> +<p>To us, Beethoven’s music doesn’t sound controversial; I’m told it was, +when it was new. But because he combined his new ideas with a lot of +known ideas, he was able to give people a chance to stretch a certain +amount. And they could, which is why to us those ideas sound just +fine. But nobody, not even a Beethoven, is such a genius that he could +reinvent music from zero, not using any of the well-known ideas, and +make something that people would want to listen to. And nobody is such +a genius he could reinvent computing from zero, not using any of the +well-known ideas, and make something that people want to use. +<a name="index-Beethoven_002c-Ludwig-van-1"></a> +</p> +<p>When the technological context changes so frequently, you end up with +a situation where what was done 20 years ago is totally +inadequate. Twenty years ago there was no World Wide Web. So, sure, +people did a lot of things with computers back then, but what they +want to do today are things that work with the World Wide Web. And you +can’t do that using only the ideas that were known 20 years ago. And I +presume that the technological context will continue to change, +creating fresh opportunities for somebody to get patents that give the +shaft to the whole field. +<a name="index-patents_002c-difference-between-copyrights-and-2"></a> +<a name="index-copyright_002c-difference-between-patents-and-1"></a> +</p> +<p>Big companies can even do this themselves. For instance, a few years +ago +<a name="index-Microsoft_002c-and-patents"></a> +Microsoft decided to make a phony open standard for documents and +to get it approved as a standard by corrupting the +<a name="index-International-Organization-for-Standardization"></a> +International +Standards Organization, which they did. But they designed it using +something that Microsoft had patented. Microsoft is big enough that it +can start with a patent, design a format or protocol to use that +patented idea (whether it’s helpful or not), in such a way that there’s +no way to be compatible unless you use that same idea too. And then +Microsoft can make that a de facto standard with or without help from +corrupted standards bodies. Just by its weight it can push people into +using that format, and that basically means that they get a +stranglehold over the whole world. So we need to show the politicians +what’s really going on here. We need to show them why this is bad. +</p> +<p>Now I’ve heard it said that the reason +<a name="index-New-Zealand"></a> +New Zealand is considering +software patents is that one large company wants to be given some +monopolies. To restrict everyone in the country so that one company +will make more money is the absolute opposite of statesmanship. +<a name="index-development_002c-patents-1"></a> +</p><hr size="2"></section></body></html> |