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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/).\ |