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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.

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