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+1. The Danger of Software Patents {#the-danger-of-software-patents .chapter}
+=================================
+
+> 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.
+
+@firstcopyingnotice{{Copyright © 2009, 2010, 2014 Richard Stallman\
+ {This transcript was originally published on <http://gnu.org>, in 2009.
+This version is part of @fsfsthreecite} I’m most known for starting the
+free software movement and leading development of the 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.
+
+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.
+
+So, for example, any time a person makes a statement about “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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+The Economist 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.
+
+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.”
+
+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.”
+
+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?
+
+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.
+
+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.
+
+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.
+
+So you couldn’t make a list of all the ideas which, if patented, could
+prohibit your program.
+
+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.
+
+For instance, in 1984 the Compress program was written, a program for
+compressing files using the 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.
+
+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.
+
+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 New York Times’ 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.
+
+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.
+
+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.
+
+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.
+
+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.”
+
+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.
+
+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.
+
+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.
+
+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.
+
+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 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.
+
+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.
+
+Anyway, after a long, expensive conversation with a lawyer, the lawyer
+will give you an answer like this:
+
+> 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.
+
+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.
+
+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.
+
+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.
+
+Sometimes you can tell what you need to avoid, and sometimes what you
+need to avoid is an algorithm.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.”
+
+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.
+
+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.”
+
+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.
+
+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.
+
+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.
+
+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 \[in software\].
+
+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.
+
+But one or two patents is a lightweight case. What about 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.
+
+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 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 “exp” as an abbreviation for “experiment,”
+then if you type “exp-space” or “exp-comma,” the “exp” would change
+automatically to “experiment.”
+
+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.
+
+But they also contacted me, because my 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.
+
+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.
+
+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.
+
+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.
+
+What about the next possibility, of getting a license for the patent?
+
+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.”
+
+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.
+
+But why does the Patent Office issue so many patents that seem absurd
+and trivial to us?
+
+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.
+
+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 `for`-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 `if-then-else` 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.
+
+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.
+
+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.
+
+IBM wrote an article in its house magazine, Think 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.
+
+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.
+
+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.
+
+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.
+
+So if your employer says to you, “We need some patents to defend
+ourselves, so help us get patents,” I recommend this response:
+
+> 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.
+
+It would be most interesting to raise this not just in private with your
+boss, but also on the company’s discussion list.
+
+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.
+
+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.
+
+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.
+
+Well, let’s look at all the unlikely assumptions here.
+
+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.
+
+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.
+
+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.
+
+So a series of unlikelihoods—it’s not a very plausible scenario. But
+let’s look at it anyway.
+
+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!”
+
+Well, here’s what really happens.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.”
+
+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.
+
+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?
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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?”
+
+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.
+
+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?”
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+There’re so many complications you have to cope with in physical
+engineering that we don’t have to worry about.
+
+For instance, when I put an `if`-statement inside of a `while`-loop,
+
+-   I don’t have to worry that if this `while`-loop repeats at the wrong
+    rate, the `if`-statement might start to vibrate and it might
+    resonate and crack;
+-   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;
+-   I don’t have to worry that corrosive fluids from the environment
+    might seep in between the `if`-statement and the `while`-statement
+    and start eating away at them until the signals don’t pass anymore;
+-   I don’t have to worry about how the heat generated by my
+    `if`-statement is going to get out through the `while`-statement so
+    that it doesn’t make the `if`-statement burn out; and
+-   I don’t have to worry about how I would take out the broken
+    `if`-statement if it does crack, burn, or corrode, and replace it
+    with another `if`-statement to make the program run again.
+
+For that matter, I don’t have to worry about how I’m going to insert the
+`if`-statement inside the `while`-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.
+
+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.
+
+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.
+
+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.
+
+A lawyer did a study of one particular large program, namely the kernel
+Linux, which is used together with the 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.
+
+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.
+
+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?
+
+I find it’s useful to make an analogy between software and symphonies.
+Here’s why it’s a good analogy.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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?”
+
+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.
+
+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.
+
+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.
+
+Big companies can even do this themselves. For instance, a few years ago
+Microsoft decided to make a phony open standard for documents and to get
+it approved as a standard by corrupting the 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.
+
+Now I’ve heard it said that the reason 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.
+
+------------------------------------------------------------------------
+
+This document was generated by *tonghuix* on *March 25, 2016* using
+[*texi2html 1.82*](http://www.nongnu.org/texi2html/).\