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<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>
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