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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.

> 本文是 Richard Stallman 于 2009 年十月 8 日在位于新西兰惠灵顿的惠灵顿维多利亚大学所做的演讲的未编辑抄本。

@firstcopyingnotice{{著作权所有 (C) 2009, 2010, 2014 Richard Stallman\
 {此抄本最初于 2009 年发表于 <http://gnu.org>。此版本是 @fsfsthreecite 的一部分。} 

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.

我所做的最出名的事情是发起自由软件运动以及领导开发 GNU 操作系统——尽管大部
分使用它的人们错误地认为它是 Linux，并且认为它是由其他人在十年之后发起的。
但是我今天并不打算谈论与之相关的任何话题。我在此是想讲述一种对所有的软件
开发者、发布者和用户的合法威胁：专利的威胁——不论是对于计算思想、计算技术
还是对于您所能在计算机上进行的任何事情的想法。

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.

现在，为了认识这个问题，您需要认识到的最重要的事情是，专利法与版权法没有
任何关系——它们是完全不同的。对于您所了解的关于它们之一的任何东西，您都可
以确认它们并不适用于另一方。

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.

于是，举个例子，只要某人做出关于“知识产权”的论述，这就是在散播一种混淆。
由于它不仅仅将专利法与版权法混为一谈，并且还混入了至少数十种其他东西。它
们都是不同的，其结果是，任何大意是关于“知识产权”的论述都是一种混淆——要么
做出这种论述的人处于混乱不清的状态，要么此人正在试图使其他人混乱不清。但
不论何种情况，不论是无意的还是恶意的，这都是一种混淆。

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.

您必须拒绝接受任何使用那个短语的论述，才能使自己不被混淆。要想对于这些法
律中的任何一个做出深刻的评价，并且进行清晰的思考，首先只有将其同其他东西
区分开来，并且专注于讨论或思考某一特别的法律。这样，我们才能了解它真正在
做什么，并且对其得出结论。因此，我在此将会讨论专利法，以及在那些允许专利
法对软件进行限制的国家发生了什么。

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.

那么，专利到底在做什么？一项专利是一种具体的、由政府批准的对于某一种想法
的使用权的独占。在专利中有一部分称为权利要求，它精确地描述了您所不被允许
做的事情（尽管它们被书写为一种您很可能不能理解的形式）。要想获知那些禁令
的真实涵义是一种费力的抗争，它们可能位于很多页精美的印刷品上。

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.

专利的有效期一般会持续 20 年，这对于我们的领域是一段相当长的时间。20 年前
还没有万维网——海量的计算机应用进入了一个在 20 年前甚至不可能被提出的领域。
当然，人们在其上做的每一件事对于 20 年前都是新奇的——至少在某些方面是新奇
的。因此，如果专利被用于禁止我们去做某些事情，那么我们可能会被禁止做某些
事情，在那些蠢到拥有这样的政策的国家。

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.

在大多数时间，当人们描述专利体系的功能时，他们会表现出对该体系的既定的兴
趣。他们可能是专利律师，或者他们在专利局工作，或者他们在一家超级大型公司
的专利部门工作。总之，他们想让您喜欢这种专利体系。

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.

《经济学人》杂志曾将专利系统称为“一种耗时的撞大运的事”。如果您曾经见过关
于彩票的宣传，您将理解它如何运作：它们反复强调微不足道的获胜几率，并且从
不提及压倒性的失败几率。通过如此做，它们有意地、系统性地展示了关于什么事
情将会发生在您身上的带有偏向性的场景，而它们事实上却又并没有针对任何特定
的事实撒谎。

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.”

对于专利系统的宣传与之类似：他们描述的是您走在街上，口袋里装着一纸专利证
书的时候如何如何——或者先说获得一项专利将会如何如何，然后您在口袋里装有一
纸专利证书的时候如何如何，通常您可以从口袋里拿出那张专利证书，用它指着别
人说：“把你的钱给我。”

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.”

为了补偿它们的偏见，我将会从另一方面进行描述——即受害者的角度——那些想要开
发、发布或者运行软件的人们将会如何如何。您不得不担心有朝一日，某人可能会
向您走来，拿出一张专利证书指着您，说道：“把你的钱给我。”

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?

如果您想要在一个允许软件专利的国家开发软件，并且您想要配合专利法，您将必
须去做哪些事呢？

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.

您可以尝试列出一项关于您想要编写的程序中可能找到的各种想法和创意的清单。
除此之外，您还需要面对这样的现实：您不知道您何时才能开始编写这个程序。但
是，即使您已经完成编写该程序，您也不可能列出这样一份清单。

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.

造成这种情况的原因是……在您以某种特定的方式想出一种计划的过程中，您已经有
了一种应用于您的设计的思想上的架构。正因为如此，它将阻止您去认识那些其他
人可能用于理解同一程序的其他架构——因为您并不是首次想到它的；您已经在脑海
中使用某种架构设计出了它。其他人在首次见到它的时候可能看到的是另一种架构，
它涉及不同的想法和创意。但是尽管如此，它们在您的程序中实现了，因此相关的
专利将会禁止您的程序，如果那些想法是受专利保护的。

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.

例如，假设有一些关于图形创意的专利，并且您想要绘制一个正方形。诚然，您可
能会意识到如果有一项关于底边的专利，它将阻止您绘制正方形。您可以将“底边”
置于您的绘画中所实现的所有想法的黑名单中。但是，您也许不会预料到，如果某
人持有一项底角专利，他仍然可以轻松地起诉您，由于他可以拿到您的绘画并且将
其旋转 45 度。此时您的正方形看起来就有了底角。

So you couldn’t make a list of all the ideas which, if patented, could
prohibit your program.

因此，您不可能列出一项想法的清单，其中这些想法一旦受到专利保护就将禁止您
的程序。

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.

您可能会尝试去做的是试图找出所有可能在您的程序中使用的受专利保护的思想。
然而，事实上您不可能做到这一点，由于专利申请在至少 18 个月内保密；其结果
是专利局可以在这段时间内考虑是否批准一项专利，并且它们不会告知您。这不仅
仅是学术上、理论上的可能性。

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.

例如，一款名为 Compress 的程序于 1984 年被编写出来，这是一款使用数据压缩
算法来压缩文件的软件，而当时并没有关于那种文件压缩算法的专利。该软件的作
者通过某家期刊上的一篇文章学到了该算法。当时，我们认为计算机科学期刊的目
的应该是发布算法以供人们使用。

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.

此人编写并且发布了该软件，并且该算法于 1985 年获得专利。但是该专利拥有者
非常精明，并不急于通告人们立即停止使用它。其专利拥有者看到了这一点：让每
个人将自己的坟墓挖得更深一些。几年之后，该专利拥有者开始威胁人们，很显然，
我们不能再使用 Compress，于是我请求人们推荐我们可用于压缩文件的其他算法。

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.

而后，有人在来信中说到：“我开发出了另一种效果更佳的数据压缩算法，并且写出
了一段程序，我愿意把它送给您。”于是，我们做好了发布它的准备，就在它将要被
发布的一周之前，我特意阅读了《纽约时报》周刊的专利专栏，我很少去阅读它——
可能每年只看几次——但幸运的是，我看到了某人已经得到了一项关于“发明一种用于
数据压缩的新方法”的专利。于是我说我们最好看看这项专利。确实，它覆盖了我们
马上就要发布的软件。但是事情还有可能变得更坏：这项专利可以再晚一年被批准，
也许是两年、三年，或者五年。

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.

尽管如此，还是有其他人带来了又一种更好的压缩算法，这种压缩算法被用于 gzip 
软件中，而几乎每一个想要压缩文件的用户都转向了 gzip，这看起来像是一个完美
的结局。但是，您随后将会知道，并非整个过程都是这样美好。

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.

因此，您不能获知有关正在被评估的专利的任何信息，即使当它们粉墨登场的时候
可能会禁止您的工作，但您可以获知已被批准的专利的信息。它们会由专利局公布，
问题是您不可能全部阅读它们，由于它们实在是太多了。

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.

在美国，我相信总共有数十万的软件专利；对它们保持跟踪是一项庞杂的工作。因
此您将不得不随时查询相关专利。您将会找到大量相关专利，但您必然不可能找到
它们的全部。

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.”

例如，在 20 世纪 80 到 90 年代，有一项关于在电子表格“重新计算自然级数”的
专利。曾经有人向我索取一份它的副本，于是我在自己的列出了专利号的计算机文
件中进行查询，并且复印了一份发送给对方。对方收到后说：“我想您发给我的不是
我想要的专利。这项专利是关于编译器的。”于是我想可能是我们的文件中记录了错
误的专利号。我再次查询它，并且确信它所描述的是“一种将公式编译到对象代码中
的方法”。然后我开始仔细阅读它，以便确认它是否真的并非我们想找的专利。我读
到了它的权利要求，发现它确实是关于重新计算自然级数的专利，但它并未使用这
些短语。它没有使用“电子表格”这一短语。事实上，该专利禁止了数十种用于实现
拓扑排序的方法——他们所能想到的所有方法。但是我并不认为它用到了“拓扑排序”
这一短语。

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.

因此，如果您正在编写一份电子表格并且试图通过搜索查询相关专利，您可能会找
到大量相关专利。但是，您并不会发现这样一条专利，直到某一天您对某人说：“哦，
我正在设计一份电子表格。”而对方说：“哦，你知道其他那些正在使电子表格软件
受到起诉的公司吗？”然后您才会知道这一点。

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.

您不能通过搜索找出全部相关专利，但可以找到它们中的许多。然后您必须获知它
们是什么意思，这是很困难的，由于专利是用冗长并且含混不清的法律语言书写的，
很难理解其真正涵义。因此您将不得不花费大量时间和钱财向律师解释您想要做什
么，以便从律师那里获知您是否被允许如此做。

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.

即使是那些专利持有人，通常也不能完全认出他们的专利到底是什么意思。例如，
Paul Heckel 曾经发布了一个用于在小屏幕上显示大量数据的程序，基于此程序中
的一些思想，此人获得了两项专利。

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.

我曾经试图找出一种简单的方式以描述其中一项专利的要求 1 所覆盖的内容。然而，
我发现我未能找到一种比其专利原文更简单的解释方式；而对于那条陈述，我不能
试图一次性将其全部装入我的脑中，不论我多么努力地进行尝试。

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.

然而，Heckel 也未能抓住其本质，由于当他看到 HyperCard 这一概念时，他所能
发现的是这与他的程序全然不似。他并没有想到他的专利书写方式将会禁止 HyperCard；
但是他的律师却有这种想法，于是他威胁苹果。然后他威胁了苹果的用户，最终，
苹果与此人达成了一项不为外人所知的和解方案，因此我们不知谁是真正赢家。因
此，这一例子足以说明任何人想要获知某项专利是否禁止某一事情到底有多么困难。

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.

事实上，我之前曾进行过这篇演讲，并且 Heckel 也是听众之一。当演讲进行到这
个节点之时，他跳了起来，说道：“这不是真的，我只是不知道我自己的专利所保护
的范围。”我于是说道：“这正是我所讲的。”此时他坐下了，而这正是我被 Heckel 
所诘问的经历的结束。如果我当时说“不”，他很可能找到某种方式与我辩论。

Anyway, after a long, expensive conversation with a lawyer, the lawyer
will give you an answer like this:

尽管如此，在与律师进行过一段冗长并且昂贵的交谈之后，律师很可能会给您这样
的解答：

> 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.

> 如果您做了这个领域中的一些事情，您几乎肯定会输掉一场诉讼；如果您做了这
> 个领域中的一些事情，您有相当大的几率输掉一场诉讼；如果您真的想要确保安
> 全，您必须避免涉足这个领域。但是，任何诉讼的结果都存在相当大的变数。

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.

现在，您已经了解从事商业活动的清晰、可预测的规则。接下来，您实际上将会如
何做？为了应对任何专利可能带来的问题，您有三件事可以做。其一是回避专利；
其二是获得它的使用许可；其三是使其作废。接下来，我将会逐条讨论。

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.

其一，回避该项专利是有可能的，也就是说，不要实施那些被它禁止了的东西。当
然，如果很难区分什么才是它所禁止的，可能也很难说出哪些方式足以回避它。

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.

两年以前，柯达起诉 Sun，由于对方使用了一项与面向对象程序设计有关的专利，
而 Sun 认为这并未侵犯该项专利。但最终法庭判决这构成专利侵犯；然而，其他人
在看到那项专利之后，都难以得出有关该判决公正与否的哪怕是最微弱的想法。没
有人能够区分什么才是那项专利所覆盖或者没有覆盖的，但是 Sun 不得不支付数亿
美元的赔款，由于它侵犯了一条完全不可理解的法律。

Sometimes you can tell what you need to avoid, and sometimes what you
need to avoid is an algorithm.

有时，您能够区分什么才是您需要回避的；有时您需要回避的是一种算法。

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.

例如，我曾经见过某项专利是关于快速傅里叶变换（FFT）相关的东西，但它的运行
速度快两倍。当然，如果普通的 FFT 对于您的应用足够快，那么这将成为回避这项
专利的简单方式。并且这将适用于大多数情况。而您一旦试图做一些一直需要运行 
FFT 的事情，并且那种快速算法刚好足够快，那么您将不能回避它，尽管您可以等
上几年以得到一台更快的计算机。不过这毕竟是较为罕见的情形。对于大多数情形，
那项专利还是容易回避的。

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.

另一方面，一项关于某种算法的专利也许是不可能回避的。考虑诸如 LZW 数据压缩
算法。如我之前所述，我们发现了一种更好的数据压缩算法，并且每个需要压缩文
件的用户都转向了 gzip 程序。其原因是，如果您只是需要压缩某些文件并且在以
后进行解压，您可以告知人们使用该程序进行解压；然后您可以使用基于任何算法
的任何程序，并且您只需关心该程序工作得如何。

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.

但是 LZW 也被应用于其他事情；例如 PostScript 语言指定了用于 LZW 压缩和 LZW 
解压的操作符。拥有其他更好的算法并没有意义，由于这只会产生一种新的数据格
式，而它们将是不可互操作的。如果您使用 gzip 算法对其进行压缩，您将不能使
用 LZW 对其解压。因此不论您的其他算法多么好，不论它是什么，它都不能允许您
根据该算法的规范实施 PostScript。

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.

但是，我注意到用户极少会要求他们的打印机去压缩什么东西。一般情况下，他们
需要打印机去做的只是解压；而我也注意到，关于 LZW 算法的两项专利都是以这种
方式书写，如果您的系统只能进行解压，这并未被禁止。这些专利被这样书写使得
它们覆盖了数据压缩，并且它们拥有同时覆盖了压缩和解压的其他权利要求；但是
并没有仅仅覆盖了解压的权利要求。于是我意识到，如果我们仅仅实施 LZW 解压，
我们将会是安全的。尽管这样做并不足以满足标准规范，这已经足以取悦用户；它
将会只做那些它们实际上所需要去做的事情。于是这就是我们如何勉强侥幸地回避
了那两项专利的经历。

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.”

现在，有一种用于图像的 GIF 格式，它也使用了 LZW 算法用于压缩。人们并没有
花费太长时间就定义出了另一种图像格式，它称为 PNG，其涵义为 PNG 不是 GIF
（PNG's Not GIF）。我认为它使用了 gzip 压缩算法。并且我们开始对人们说：
“不要使用 GIF，它是危险的。转向使用 PNG。”而用户则会说：“好吧，也许某天
我们会这样做，但是浏览器还没有实施它。”并且浏览器开发者也会说：“我们也许
会在某一天实施它，但是现在还没有太多的用户需求。”

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.

当然，事情的发展状况是非常明显的—— GIF 是一种事实上的标准。实际上，要求
人们从他们所习惯使用的事实标准格式转向另一种不同的格式，就如同试图要求每
位新西兰人改说匈牙利语。人们会说：“好吧，也许某一天我会去学着说匈牙利语，
只要所有其他人都这样做。”于是我们对于要求人们停止使用 GIF 的努力从未成功
过。即使其专利持有者之一已经开始将矛头对准网站操作者，并且威胁起诉他们，
除非他们能证明其网站的所有 GIF 图片都是使用经过认证和授权许可的软件制作的。

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.”

于是，GIF 对于我们社区的大部分人来说都是危险的陷阱。我们认为我们有一种 GIF 
格式的替代品，称为 JPEG，但是其后就有人说：“我刚刚翻阅了我的专利公文包。”
——我认为这是某些刚刚买了某项专利并且立即将其用于威胁众人的人——并且他接着说：
“然后我就发现其中一项专利覆盖了 JPEG 格式。”

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.

当然，JPEG 格式并非事实上的标准，它只是一种官方标准，由一个标准委员会颁布；
该委员会也有一位律师。他们的律师声称他并不认为那项专利真正覆盖了 JPEG 格式。

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.

那么，究竟谁是正确的？这位专利持有人起诉了多家公司，并且如果有这样的一种
结论，它将会说出谁是正确的。但是，我未曾听说过有这样一种定论；我不确定是
否真的有定论，我认为他们达成了某种和解，而最终的解决方案几乎肯定是绝密的，
这意味着它不能向我们传达关于谁对谁错的任何信息。

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.

也有相对轻量级的案例：例如关于 JPEG 的一项专利，或者关于 GIF 所使用的 LZW 
算法的两项专利。现在，您可能想知道为何关于同一种算法会有两项专利。这本不
应该发生，但却就是发生了。其原因是专利审查者事实上不可能拿出时间来研究他
们也许需要仔细研究和比对的每一对概念，这是由于他们不可能拿出那么长的时间。
并且由于算法实际上就是数学，您不可能对那些您需要比较的应用和专利的适用范
围进行缩窄。

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 \[in software\].

您将会看到，在物理工程领域，他们可以使用将要发生的事物的物理本性来缩窄其
适用范围。例如，在化学工程中，他们可以说：“输入的物质是什么，输出的物质又
是什么。”如果两项专利申请是以这种形式相互区别的，那么它们并不是指的同一过
程，因此您不必为此担心。但是，同一种数学原理可以被表现为看起来非常不同的
形式，并且即使您将它们放在一起研究，您仍然不能意识到它们描述的是同样的东
西。并且由于这个原因，在软件领域发现同一事物被多次赋予专利是非常普通的事
情。

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.

您还记得那个在我们准备发布之前被一项专利扼杀的程序吗？那种算法也被赋予了
两次专利。在一个小的领域中，我们已经看到这种情况发生在我们偶然遇到的两起
案例中——同一种算法被赋予两次专利。好吧，我想我的解释已经让您明白这为什么
会发生。

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.

但是，仅仅需要面对一两项专利只是一种轻量级的案例。那么，MPEG2 这种视频格
式的情况又如何呢？我曾见到过一份列出了超过 70 项覆盖它的专利的清单，想要
通过某种方式的谈判获得所有相关专利的使用授权许可所花费的时间超过了该标准
本身的开发过程。JPEG 委员会想要开发一种后继的标准，但他们还是放弃了。他们
说这涉及的专利实在是太多了，以至于没有可能实现、

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.”

有时，受专利保护的是某种功能特性，回避该专利的唯一方式是不去实现那项特性。
例如，文字处理器 Xywrite 的用户曾经收到有关功能降级的邮件，这项降级移除了
一项特性。该特性允许您定义一系列缩略语。例如，如果您将 exp 定义为 experiment 
的缩略语，那么当您输入 exp 空格或者 exp 逗号时，exp 将会自动变为 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.

然后，此功能的专利持有者威胁他们，他们得出结论，所能做的唯一事情就是移除
该功能，他们于是向所有用户发送了降级。

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.

但是，他们也联系了我，由于我编写的 Emacs 文本编辑器自 20 世纪 70 年代后期
就拥有一项类似功能。这是被写在 Emacs 用户手册中的，于是他们认为我也许能够
帮助他们使那项专利作废。我对于自己的一生之中能有至少一项可获专利的想法而
感到满意，但我并不希望看到其他人用它申请专利。

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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