(go to menu)
Richard Stallman
Please raise your hand if you cannot hear me.
[No hands raised... laughter]
Although I'm mostly known for my work on
developing Free
Software, that's not what I'm here to speak about
today. Here I'm going to speak about a proposed law that
threatens to make it nearly impossible for independent software
developers to develop and release software, regardless of
whether it's free or proprietary or merely software for private
use, which is the usual case. I'm talking about the danger of
patenting software ideas.
Now, most people have been led to confuse patents and copyrights
which in fact are two completely different laws that have almost
nothing in common. The widely-used, confusing term
"intellectual property" encourages this confusion and
therefore we should reject that term completely. So let me, to
help unconfuse the situation let me give a bit of explanation
about how patents and copyrights differ. In fact, they have
almost nothing in common, but these are some of the main
differences.
Copyright covers a work of authorship. A patent covers an
idea. The copyright applies to the details of the expression of
the work; nothing like that in the case of a patent. Copyrights
come into existence automatically, anything written is
automatically copyrighted. Patents are issued by patent office
in response to an application. The application has a high fee,
but much more expensive is paying the lawyers to draw up the
application so that it will be accepted. There are a lot of
rules that you have to know how to follow in order for the
application to be accepted.
Now, anything that's written will be copyrighted. There's no
criterion for how good it has to be, or any kind of quality at all. But,
supposedly, patents are only issued on ideas which are new, useful, and
unobvious. However, practically speaking, the way this criterion is
interpreted it means "unobvious to someone with an IQ of 80".
[laughter] And, finally, copyrights cover copying. If you spent a year
in a cave incommunicado, and you come out having written a novel that's
identical to a novel someone else wrote or published during that year,
you could prove, then, that you did not copy it, and that's a defence
against any accusation of copyright infringement. But a patent is an
absolute monopoly on the use of an idea. Even if you could prove that
you had the idea yourself, that would be irrelevant: you're still not
allowed to use it.
Copyrights last an incredibly long time, in some cases today
they can last 150 years. Patents last a shorter time, twenty
years, but in the software field, twenty years is very
long. Twenty years ago, there was no world-wide web, Internet
was just being started and the IBM PC was a fairly new toy and I
think the Macintosh had just been released. If we were limited
in developing software to combining the ideas that were known 20
years ago, there wouldn't be much of practical use today we
could do.
I refer to these patents as software idea patents, to help avoid a
common confusion. Many people think this is an issue about
"patenting programs". But it isn't. Nobody is trying to patent
specific programs; that isn't allowed, but nobody would bother even if
it was allowed. A patent covering one specific program would not really
matter to anyone. The reason why these patents create an issue is that
they're not about specific programs, they're much more general. Each of
these patents covers an idea that you might use in implementing various
different programs, that lots of different programmers might use, might
put into the programs that they are writing. And that's what makes them
obstacles and dangers to software development activity.
The Economist once compared the patent system to a "time
consuming lottery". And if you've ever seen publicity for
lotteries, I'm sure you're aware that they focus a lot of
attention on the unlikely possibility that you'll win, and don't
mention the overwhelmingly likely possibility that you'll
lose. So without exactly lying, they endeavour to give you a
distorted picture of what's likely to happen to you. And it
should be no surprise that the publicity for the patent system
does the same thing. Most of the time, when people talk about
how the patent system works, they have a vested interest in that
system. Either they work for the patent office or they're patent
lawyers or they might be patent holders or work for patent
holders. So they tend to describe the system from the point of
view of somebody who's hoping to take advantage of it. They tell
you what it's like to walk down the street with 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 make up for that imbalance, I'm going to describe the patent system
from the other side. I'm going to talk about what it's like to be one of
the possible victims of the patent system; somebody who wants to develop
or use software; what it's like to be walking down the street knowing
that sometime, anytime, somebody can pull out a patent and point it at
you and say "give me your money".
Suppose that you live in a country that allows software idea
patents, and you want to try to work thoughtfully, with the patent
system, and deal with the legal restrictions placed on your use
of computers. What are you going to do? Well, the first step is
to find all the patents that may restrict what you can put in
the software you're about to develop. This is impossible
because there are patent applications being considered
now which are secret. You can't find out about them, but
tomorrow or next year they may be issued and they may restrict
what, and they may then prohibit the program that you're
developing. And this is not just a theoretical possibility. I've
seen it happen.
In 1984, the compress program was released, a program for data
compression. It used the LZW compression algorithm which the author had
seen in a journal article. This is back when we thought the purpose of
the journals in computer science was to publish methods that we could
use in our software. And at the time, in 1984, there was no patent on
LZW, but in 1985 the US patent office issued a patent. The patents
holder was clever and did not immediately start trying to scare
people. They waited a few years, figuring "let's let people dig
their holes deeper". And then they started threatening people.
So by around 1990 or so, we in the
GNU project were looking for some other way to compress
data. So we posted on the net asking "who can help
us?". And somebody responded saying he had been working on
a data compression program for a year and decided to give it to
us. A couple of months later, when we were about a week away
from releasing it, I saw the New York Times on the day of the
week of the weekly patent column. This didn't happen very often,
maybe a few times a year. And it said that somebody had got a
patent for "a new method of compressing data". I
thought we better look at this. And, sure enough, it covered
the program we were about to release. Twice in a row.
Well, eventually someone else provided the algorithm used in the program
called gzip and so everyone stopped
using the other data compression programs and switched to gzip. So this
particular story has a happy ending. But it's not as happy as you might
think, I'll explain later.
So you can't find out about the patents that may prohibit your
work tomorrow or a year from now, but you can find all the
issued patents because those are published by the patent
office. So that those are part of the public record, you can get
them. You can't read them all, because there are too many, it
would be hopeless. Keeping track of new software idea patents is a
full time job.
So what you're going to have to do is search to try to find the
ones that are directly relevant to restricting the kind of
program you're about to develop. This is not entirely
reliable.
There used to be a software idea patent in the US, covering the
technique, the feature, of natural order recalculation in
spreadsheets. Now what does this feature mean? It means that every time
you recalculate, it waits to recalculate any cell until the cells it
depends on have already been done. So one pass through it goes in the
right order to make everything consistent. The earliest spreadsheets
didn't do that. They ran in very small computers, the kind of computer
that existed more than 20 years ago. So they would always do it top to
bottom, whether that was right or not. So you might have to type
recalculate recalculate recalculate recalculate a few times to make
everything get consistent. Then, when computers got bigger, people
figured "let's have it do the right thing for you".
So there was a patent covering this and somebody asked me for a
copy, so I sent it to him and he got back to me saying "I
think you sent me the wrong patent, this is something about
compilers". So I looked in the records again, and saw that
patent number, pulled it up and yeah, its title said "A
Method for Compiling Formulas into Object Code". I
looked at it again and saw, yes, it was the right patent, this
was the patent that covered natural order recalculation. It
actually covered the algorithm known in computer science as
Topological Sort, whose first reference in the literature was in
1963. But this patent did not mention the term spreadsheet, it
did not mention the term natural order recalculation, and did
not mention the term topological sort. If you had been searching
for the, for patents because you wanted to write a spreadsheet,
you wouldn't have found out about this one, unless you heard
from somebody who was getting sued [laughter].
[15:00]
However by various searching methods you'll find a lot of patents that
might restrict what you're about to write. So then what. Then
you've got to figure out what they mean. That's really hard because
patents are written in twisted legal language and the words don't mean
what you think they mean. It's very hard to understand.
The Australian Government, in the 1980s, commissioned a study on the
effects of the patent system. And this study concluded that there was
no reason whatsoever to believe patents did any good for Australia,
and said that if it were not for international pressure they would
recommend simply abolishing the system. But since there was the
international pressure they recommended making patents last a shorter
period of time, narrower in scope and harder to get. And in particular
they said that patents were completely failing at one of their main
goals which was to cause useful disclosure of ideas, because they were
so hard to read that engineers essentially never read them.
And they quoted an engineer saying "I can't recognise my own
invention". [laughter]
I've seen this too. A programmer named Paul Heckel developed a
program and
then got
a couple of patents related to that program, and then when
he saw hypercard released by Apple it didn't look anything like
his program, so he would never have dreamed that his patents
might apply to it. But his lawyer said that the way the patents
were written, they could arguably cover aspects of Hypercard.
So Heckel threatened Apple, and then, when that didn't get results he
started threatening some of Apple's customers - because the users also
can get sued. And eventually he settled somehow with Apple and got
some amount of money that neither of them will tell us about. This
sort of thing is a little bit like child abuse in that people don't
like to talk about it. The victims are scared to talk.
So, once I was giving this speech in California, and Heckel was in the
audience and he jumped up and said "That's not true - I just didn't
know the scope of my protection". And I said "Yes, that's what
I said". [laughter]. If I had said "No" he probably would
have had some way to argue with me, but he sat back down and didn't open
his mouth again. [laughter]
They love to use that propaganda word "protection", as if
somehow an idea would get destroyed or become unusable if more people
were allowed to use it. Reject that propaganda word. Never allow
it. Never accept it. There's a lot of propaganda going on in this
field. I may point out to you some other propaganda words. We've
got to be vigilant against letting them into our own conversation,
letting them warp our thinking.
Another propaganda phrase is "intellectual property",
which I already partly explained, in trying to treat Copyright
and patents as if they were one issue. Whereas software idea
patents endanger software developers and copyrights don't it's
completely idiotic. Their effects are so different in practical
terms that it is completely self-defeating to treat them as if
they were a single issue. And in general anyone who talks about
intellectual property is either trying to mislead you or mislead
himself. More often the latter.
To attempt to think about "the issue of intellectual property"
ensures that only foolish alternatives will suggest themselves to you as
natural. It's a bit like trying to discuss the question of "fluids
policy". You know, fluids policy would clearly cover air, water,
milk, blood, oil, and various other things - mercury [laughter]. They're
all fluids. We should obviously have one policy, there's just one issue
there, right?
[20:00] So, you're going to have spend a
lot of time talking with a lawyer explaining what it is you're planning
on doing so that the lawyer can explain to you what the patents prohibit
and what they don't, and eventually the lawyer will give you an answer
like this: "if you do something in this area you'll most likely
lose the lawsuit. If you do something in this area you've got a
considerable chance of losing, and if you really want to be safe stay
out of this area. But be aware that there's a substantial element of
chance in the outcome of any lawsuit".
So now that you know just what kind of business you are allowed
to do and what you're not allowed to do, how are you going to
deal with these patents? For each patent there are essentially
three options you can try: one is to avoid the
patent. Second is to get a licence
for the patent, and the third is to overturn
it - show it's invalid. And each of these options, based on
independent factors, may or may not be possible in any one case.
(go to menu)
[Section: Option #1: Avoid the patent]
So, first let's talk about the option of avoiding the
patent. That means don't use the idea. For instance if you were
making a spreadsheet and you wanted to avoid the natural order
recalculation patent that means don't put natural order recalculation in
your spreadsheet. Would have been a rather lousy spreadsheet - people
wouldn't use it.
Now when another feature, another example of a patented feature, was
the feature for word processors, a feature of defining an
abbreviation so you could take any letters you want and define that
as an abbreviation, and then say what it should stand for, and then
when you type that abbreviation followed by punctuation it would
automatically replace itself by the expansion. So you could define cmt
as committee and then you could type cmt-space and it would turn into
committee-space or cmt-comma and it would turn into
committee-comma. Anyway, the word processor XYwrite had this
feature, and then they discovered somebody in the 80s had patented
it. So they tried negotiating with him to get a licence but they found
out he was just impossible to negotiate with. And then they thought
about trying to sue to overturn it in court, but they decided that was
too hard - too expensive - so eventually they just took it out and
they sent all the users a downgrade in the mail[laughter] - taking out
that feature.
Now, how did I find out about this? Well, they wrote to me
because it turns out that my text
editor Emacs -
the thing that I first became known for - had exactly that
feature in the 1970s. So they thought that I might be able to
provide them with evidence to help them overturn the patent. So
they had an argument to make, they just decided it was too
troublesome a way to go. Even despite having the evidence in
hand. So it's nice to know I've had at least one patentable idea in my
life. [laughter]
So they decided to avoid this patent. And it wasn't too hard, i
guess, not having that abbreviation feature would be somewhat
annoying to the users, but maybe they would still have
considered the program usable. But, you know, if you look at
your word processor you'll see hundreds of features, and they
are all used by people even though you don't use all of the
yourself. When you start taking out one feature after another
after another eventually you end up with a program that the
users say "this is just not good enough - it doesn't do
what I want".
(go to menu)
[Section: LZW, PostScript, and GIF]
Sometimes what's patented is an algorithm, for instance the LZW data
compression algorithm is a good example. We avoided that patent in data
compression - we developed another data compression program which uses a
different algorithm so the people who thought "I want to compress
my file" they used our program. So we solved that problem, but the
same algorithm is used in the PostScript language. PostScript language
specifies there is an operator to do LZW compression and an operator to
do LZW uncompression. Well, we can find another algorithm but it's
useless. [25:00]
No other algorithm produces compatible results. We can come up with
another way to do data compression, but we can't implement
PostScript. Not as it's specified.
Well, it turns up that wasn't too much of a disaster - only the
compression is patented, not the uncompression. And people don't
usually ask their printers to compress anything, they only ask the
printers to uncompress. So we sort of squeaked by, just barely, on
that one. But then the same algorithm is used in GIF files.
And the patent holder, Unisys, started threatening not just software
developers but companies that had web sites with GIF files on them,
saying "can you prove all your GIF files were made with a properly
licenced program? If not we can sue you!"
Of course, people didn't take too long to develop a replacement
format called "PNG" for PNG's Not Gif [laughter],
which uses the gzip compression algorithm. which, by the way,
does better data compression - makes smaller files than LZW.
And we started saying to people "stop using GIF format -
switch to PNG format". And what happened? Not
much. [laughter]
The users said "we can't use PNG format, the browsers don't display
that". And the browser developers said "well, we could
implement PNG format but no users are asking for that". What you
see is the difficulty of avoiding something that's a de-facto
standard. GIF is a de-facto standard. When a de-facto standard is
patented you're in real trouble.
It's not just de-facto standards that get patented, because JPEG which
is an official standard released by a standards committee is also
perhaps covered by a US software idea patent and people are
getting sued right now. The standard committee says they don't think
the patent really covers the standard, but nothing guarantees the
court will agree. Who knows what will happen?
GIF is actually covered by two patents: both covering the LZW data
compression algorithm that was patented twice. Now, that's not supposed
to happen but it does, and the reason it happens is that the two patents
are not written in the same way. You have to look at them and think
about them carefully to see that they are both covering the same
computation. Now if they were patents on some kind of chemical process
you could say, you could have a quick way to see if you need to think
about them, because you could ask yourself "are the same chemicals
going in, are the same chemicals coming out? Hmm, if they are the same I
guess I'd better compare these". But there's nothing like that to
help you comparing these two patents on different ways of describing the
same mathematics. Fact is, you could describe the same mathematics in
ways that don't look exactly the same at first sight. only when you
think about them do you see it's the same mathematics. And the patent
office doesn't have time. I'm not going to say that some patent examiner
did this because he was stupid - the fact is they have only 17 hours per
patent application, and they don't have time to take this application
and every other application and spend a lot of time comparing them.
This isn't the only data compression algorithm that's been patented
twice, remember that program that was killed off a week before we
released it? That algorithm got patented twice too. [29:00]
One or two patents covering a de-facto standard is actually a
light version of the problem. Look at the MPEG-2 video
standard. That's covered by 39 different US software idea
patents at once! The negotiations to arrange some way that
someone could license all those patents took longer than the
development of the standard itself.
And people from the committee that produced the JPEG standard were
trying to work on a new version but they say that software idea
patents make prospective standardisation essentially impossible.
[30:00]
So...sometimes you'll be able to avoid patents. Sometimes a
standard means it doesn't matter even if you find a better way
to do the job, it's still useless because it's not the standard.
And sometimes there's a patent so broad that avoiding it is
hopeless, the entire field of public key encryption was
off-limits in the U.S. because of a very broad patent until
1997. We just couldn't do it. Most people couldn't do it. So
that's the option of trying to avoid patents.
(go to menu)
[Section: Option #2: Get a licence]
The next option it to try and get a licence to use the idea.
Now that's not necessarily possible. The patent holder doesn't
have to offer you a licence, the patent holder can say "I
will allow no competitors, I'm shutting you down", and that
does happen. I once got a letter from somebody whose family
business was making casino games using computers, and he was
being threatened by some competitor who had a patent, and the
competitor wouldn't offer him a licence, just said "you
gotta stop, you gotta close your business".
When I looked at this patent, claim one said "A network
containing more than one computer where, each computer
implements more than one different game, and each computer can
show more than one game session at a time", that's all.
I'm sure that there were various computer labs, back in the
1980s, in universities, where they set up a network of
workstations that had window systems and installed more than one
multi-player game. And if so they were doing exactly what that
patent described and they probably didn't even realise that
there was an idea there. And this is one interesting point, the
idea that a software idea patent prohibits you from using might
be something you did without even conscious awareness of it as
such. But anyway, the patent office tends to think that if
somebody else did something once, or did one thing and this
other guy does it multiple times or several different things,
that's an invention. But actually in computer science it's a
basic principle that anytime you have done something once that
you can do it N times. That if you have one thing, you can have
a choice between N different things, and if you do things, you
can do them in parallel.
Anyway, although this patent was utterly absurd, we couldn't
help him. He had no money to consider going to court, so he
just had to shut down.
However, most patent holders will offer you a chance to get a
patent licence, but they charge a lot of money for it. For
instance the patent holder of the natural order recalculation
patent was asking for 5% of the gross sales of every spreadsheet
in the US. Now, maybe you could afford to sign one patent
licence like that, but what really happens, but suppose that
another patent holder comes and another and another, what
happens when the twentieth patent holder asks you for 5%? And
then another one comes along? Well, this is really just a joke
because people in business told me that two or three such
licences would be enough to drag your business into failure.
(go to menu)
[Section: Cross-licensing protects big companies]
However there are some software developers for whom it's usually
easy and painless to get a patent licence. And those are the
global mega-corporations. Because they have lots of patents and
they use those to force everybody else to cross-licence with
them. IBM wrote and article in Think Magazine issue number 5
1990, about IBM's patent portfolio. It said that IBM got two
types of benefit from it's 9,000 active U.S. patents. Benefit
one was collecting money. Benefit two was getting access to the
patents of others through cross-licencing and the article said
that the value of benefit two was perhaps an order of magnitude
greater than, in other words, ten times as big as benefit one.
Now this is interesting because, you see, the patent system is
like a time consuming lottery. If you are a small business what
happens to you from the patent system is, to a large extent,
affected by randomness. But IBM is so big that IBM can measure
the average for us. IBM can measure how big the benefits are
and how big the harm is. And IBM's conclusion, stated in this
article, was the harm is ten times a big as the benefit. Now
you might think that that's impossible, it's like saying
"well the children are above average, right?", it's a
zero sum thing, how could the harm on the average exceed the
benefit? Well the answer is, that harm dosn't really happen to
IBM because IBM practises cross-licencing and avoids it. So
there's this big harm and a certain amount of good, but IBM
makes the harm go away so all it gets is the good. But IBM
measured for us the size of the harm that didn't happen,
[sniggers from audience] and that measurement is useful because
while IBM has 9,000 patents and they can make everybody cross
licence, if you've got a small business you aren't going to get
9,000 patents and you aren't going to be able to make most people
cross-licence with you.
Now many companies say "We've gotta get some patents to
defend ourselves with". Well the problem is each patent
points in a particular direction, it's like a landmine buried in
a certain spot. You know if I've got a patent pointing there
and there, and somebody over there points a patent at me, my
patents don't do me any good at all. IBM with its 9,000 US
patents, it has patents pointing everywhere, so no matter where
somebody is, if he attacks IBM, IBM can almost certainly
threaten to shoot back. And say "lets sign a cross-licence
so that neither of us gets hurt".
Interestingly, these many companies that say to their employees
"Get us some patents we've gotta have something to defend
ourselves with", while they like to say it's for defence,
they don't offer to sign a contract with the employees
committing themselves to using these patents only for
defence. So, a few years later when the company has been bought
out or has new management and they got this patent pointing over
there well, they might just decide to use it opportunistically
for aggression, and nothing can stop them then.
Now this practice of cross-licencing is very important to
understand because this is why the mega-corporations want
software idea patents, because they know that they will
cross-licence with each other and they will form an exclusive
club, and the rest of us will be down at the bottom of a cliff
wondering how we're ever going to get up there. It gives for a
measure of dominance over everything. And that's why they want
it. It's also important to recognise that this reveals the
falsehood in one common myth about the patent system. The myth
of the starving genius.
(go to menu)
[Section: The myth of the starving genius]
This myth starts with a scenario, which is implausible in number
of ways, unlikely. It says, imagine there is a brilliant
developer of whatever, who's been working for years to come up
with a better way to do whatever and now it's working and he's
going to start a business. And because his idea is so good his
business is going to be a tremendous, it'll be a great success.
Except for just one thing, which is that the big companies will
come and compete with him and take all the customers away and
then his business will fail and he'll starve. [laughter]
Well, this scenario is implausible whatever they say. First of
all, in high-tech fields, people don't usually have ideas in
isolation. Once in a while yes, but usually they have ideas
because they are working in the field with other people and
working on solving real problems. The next thing is that, if
this person is going to start a business well, it's probably
going to fail anyway no matter what.
[40:00]
[laughter]
Because over 90% of new businesses fail in the US and the reason is
that if he's a brilliant scientist or inventor that doesn't mean he
knows how to run a business for one thing. He probably doesn't. So
it's probably going to fail. But supposing he does know how to run a
business. Well in that case he's going to be smart enough, since he's
starting a small business, to go in a direction where the advantages
of small business could be helpful. Instead of trying to do the kinds
of things that large companies can most easily do.
The next point is that even if the large companies compete with
him, that doesn't mean he has to fail. Not if he knows how to
run a business. Not all small businesses fail. And finally,
since it probably is going to fail,
that doesn't mean he's going to starve. If he's that smart he
could probably get a job. [laughter] So it's an unlikely
scenario. If this ever happens it's rare, and it isn't of great
social importance what would happen given that he's not going to
die, and given that there are a bunch of other unemployed
people, so it's just one part of the larger social problem which
we've got to solve. [laughter]
It would make no sense to decide patent policy based on this rare case -
but let's look at it anyway. Here's what they say, they say that patents
would make all the difference because this genius can get a patent and
then when IBM tries to compete with him he can say "IBM, you can't
compete with me because I've got this patent, so go away!". And
according to this myth the patent will "protect him".
But here's what really happens; IBM says: [smiling]
"Oh. You've got a patent" [laughter], "we've got
this one, and this one, and this one that cover various parts of
this complicated thing that this is making, and if you think you
can go to court and fight us on all of these so we'll dig out
some more. So why don't you sign a cross-licence agreement with
us, and then neither of us will get hurt".
And this genius then recognises that he has to sign this cross-licence
agreement and then neither of them sues each other. But what does that
mean? IBM has got access to the patents of others. IBM can compete with
him after all. The patent didn't "protect" the starving
genius. So if IBM was going to wipe him out by competing with him, it
can still do so.
The idea that patents "protect" small businesses from big
competitors is false. It's a myth.
Now even IBM can't make every patent holder cross-license because IBM
has patents on various ways of making things but the lawyers, you see,
although patent lawyers want us to believe that patents are really
wonderful, in their own lives they have understood perfectly well that
that's not so. So they have made sure there are no patents on how to
send a threatening letter to somebody, or how to file a lawsuit or on
how to win the support of a judge or a jury.
There are patents that belong to patent parasite companies whose sole
business is threatening to sue people and squeezing money out of
them. And even IBM can't make them cross-license. Where IBM figures
that paying them off is just part of the cost of doing business and
that its competitors will have to pay them too, so they figure that
they can just live with that certain level of parasitism.
There are also certain software developers for whom getting a patent
licence is extremely hard. We Free Software developers. You see Free
Software has been so successful because we have shown we can develop
software without any money. Volunteers do it. We don't need to have
money to develop powerful large programs. But we certainly need to
have money if we're going to buy patent licences. A typical patent
licence requires a payment per copy.
Which means that someone like me can't possibly do it. Suppose
the fee were one millionth of a Euro per copy. The total amount
of money involved, I might have in my pocket now, but I can't
possibly fulfil that licence 'cause I can't count the copies. If
it's free software that means that any of you can make more
copies. If I put restrictions on you, if I force you to tell me,
it wouldn't be Free Software anymore.
Now, it is possible for a patent holder to offer a licence for a
lump sum, but when they do, it's usually for a large amount like
$100,000. Often they want a lump sum and a fee per copy. We just
won't be able to do that.
So, this is the alternative of getting a patent
licence. Sometimes possible, usually fairly easy if you're IBM
or Microsoft or Nokia, not very easy for smaller organisations
without paying.
(go to menu)
[Section: Option #3: Overturn the patent]
The third possibility is to challenge the validity of the
patent. Now in order to do so, you need to have an argument to
make, which means you need to present evidence that the idea was
already known before a certain date. That means, in effect, that
the dice were rolled sometime years ago and if you can find
proof that they came out in your favour, you have an argument to
go to court with, if you can afford the cost of this.
A few years ago Qualcomm was a defendant in a software idea
patent lawsuit, and lost, and had to pay $13million of which
$8million went to pay for lawyers on both sides. So it's
expensive, somewhat, it can turn out that if you're not rich
then a probably invalid software idea patent is a very dangerous
weapon to be attacked with.
I should make it clear that not all software idea patents are
absurdly trivial. I've mentioned a couple of those, but I don't
think LZW is trivial. It's an algorithm that wasn't
obvious. But, nonetheless, patenting it has done great harm. And
public key encryption was a brilliant idea, but patenting it has
done great harm. And abbreviations in a word processor, I
wouldn't say that's brilliant, but I don't think it's trivial
either. Patenting it has done nothing but harm.
So these three options are possible, and each one is possible or
not in any given case based on different causes, which means,
sometimes, none of them is possible, and that means your project
is dead. But, in fact, people don't really usually try to look
up the patents before they do something. The reason is the
penalties are worse if you knew about the patent; so it's better
not to know [laughter]. What people actually do is they close
their eyes and they go. It's like crossing a mine field. At each
step probably nothing happens [laughter], but you've got a lot
of steps to take if you're developing a substantial modern
program.
(go to menu)
[Section: Why is software unlike other fields?]
And that's, that's an important point beause sometimes people
used to ask me rather a silly question. They'd say,
"Engineers in other fields have been dealing with patents
for years, why should software be an exception?". Now this
is a silly question because it has a foolish bias in it, you
know, as if living with patents was some kind of duty that we,
we all had to expose ourselves to this danger. It's like saying
"other people got heart attacks, why shouldn't you?"
[laughter]. Whereas as I see it, each case of a person not
getting a heart attack is for the best, all else being equal,
independent of what happens to the other people.
But, there is an intelligent question we can find if we excavate under
that silly question, and that is: "are there relevant differences
between fields that have implications for proper patent policy in these
various fields?". And there is one. Namely, how big and complicated
is each product? How do patents relate to products? And that's different
from one field to another.
We have in our minds, a myth, a mythical picture of the patent
system, which is that when you design something, there will be
one and only one patent on that design, and you, the designer,
will get it, if it's a new design. Well, that may have been how
it worked for mechanical devices in the 1800s. It's not that way
now. But different fields are further or, for that matter,
closer to that. The field that's closest to that is
pharmaceuticals. Until a few years ago it really worked exactly
that way. That the patent, the patents in pharmaceuticals would
cover the entire chemical formula of a drug. So if you developed
a new drug, there'd be no patent on it, and you the developer
would be the only one who would get a patent covering that
drug. I'm told that this is not true anymore. Nowadays, if you
develop a new drug, there may be an existing patent covering
it. So it's moved away from this mythical picture, but it's not,
it's still closer than any other field. And then there are the
various other fields of physical engineering. The other extreme
is software.
In software we make things that are very big and complicated
that have lots of different features and lots of different
methods going on inside. Which means that in one program, we're
combining lots of different ideas that might be patented already
by various different patent holders at the same time.
Now, why is this. This is no accident. It's not just a
historical outcome. There's a fundamental reason for this. The
reason is, that in software were making designs out of
combinations by putting together idealised mathematical
components. In all the other fields, people have to deal with
the perversity of matter, 'cause they're making physical
things. And the matter does what it does, and if it isn't what
you expected, tough luck. So they have to deal with lots of
problems, which we in software don't ever face.
For instance, if I put an if-statement inside of a while-loop, I don't
have to worry about whether the voltage drop through the while-loop will
be so much that the if-statement won't get enough voltage and it won't
work [laughter]. I don't have to worry that as the while-loop goes
around, the if-statement will shake and eventually come loose
[laughter]. Or I don't have to worry that it will go around even faster
and this if-statement will generate radio frequencies and induce wrong
values elsewhere in the program [laughter]. I don't have to worry that
corrosive fluids will get between the if-statement and the
while-statement and eat away at the contact between them and eventually
there'll be so much voltage drop that the if-statement won't work
anymore. I don't have to worry that the if-statement will burn out. I
don't have to worry about how I'm going to sink the heat dissipated by
the operation of this if-statement. I don't have to worry how, about
how, if the if-statement does crack or burn out or corrode or whatever,
about how I'm going to remove it or put in a replacement
if-statement. In fact, I don't have to worry about how, each time I
build a copy of the program, about how I'm going to put the if-statement
beside the while statement in that copy. When you design a physical
product, often, really, the job is designing the factory that's going to
make it. But we don't have that issue in software.
If I want to make a copy of a program, I type "cp", or
maybe I type "dd", you know, there's some copy command
and it'll copy any program exactly the same.
There's so many problems that we just don't have to deal with,
'cause our components aren't physical things, they're
mathematical ideals and they have definitions, not just
models. So they do exactly what they're supposed to do.
So, what does this mean? I presume that the intelligence spectrum
of people in the software field is the same as the intelligence
spectrum mechanical or electrical or chemical engineers. But
their fields are harder. Our field is easier. So what do we do?
We push to the limit. People push all their skills to the
limit. If you make your job big enough, eventually it gets
hard. And that's what we've done. We develop programs that are
very very big, bigger than other things people can design when
you measure in terms of how many components there are. A
program with a million different parts in its design, would be a
program with two or three hundred thousand lines of code, I
guess. 'Cause each line has several components typically put
together. And this is something that a few people can do in a
few years. This is normal. This is not among the biggest
programs. A physical design with a million different parts, and
I mean, not repeating subunits, many of them, but a million
different parts in its design, counting repetitions only once,
that is a mega-project. That's at the limit of human ability.
So what does this mean? In software we can combine more
different ideas in one program than people can do in any other
field. And that means that the patent system causes us more
gridlock, more of the land mine effect, in our field than in any
other field. And the result is that software patents obstruct
the main work of software development.
The main work of software progress is not getting ideas. If
people are working on programs, they're going to have ideas. And
they'll just immediately implement these ideas. You know, you
have what you think. I could make this feature in my
word-processor, and I do it. You don't have to do any research,
you just have to write code. And so, having people working on
software produces ideas for what you can do in software. But we
also have universities where lots of people are actually getting
paid, often with government funding, to come up with ideas.
To have an artificial system intended to promote people's having
more ideas by obstructing software development is self
defeating. It's going to result in fewer ideas, not more.
Software patents are an obstacle, even to progress in
software. Now this might seem unthinkable. The advocates of
software idea patents ask you to take for granted that no matter
what harm or trouble or nuisance these patents may cause, they
must be promoting progress and surely that justifies whatever,
whatever trouble they may impose on you. But this is not so.
You can look at the economic modelling to show it's not so.
In www.researchoninnovation.org/patents.pdf,
I warn you, it's rather mathematical, but it shows how, in a
field with incremental innovation, a patent system can retard
progress. The assumption that they want us to take for granted
is false. And clearly incremental innovation is normal in the
software field.
The same site has another paper showing that, in fact, in the
US, empirically speaking, after software idea patents were
allowed, the result was a decrease of investment in software
R&D, because the money was transfered into patenting
instead.
But there's an even more important reason to reject software
idea patents. Because, patents in other fields are industrial
regulations on a few specialised businesses. You know, patents
on automobile engine design - how many companies do those
restrict? You need to have a lot of money to set up an
automobile company. But software idea patents restrict everybody
with a computer. That's a large fraction of the citizens in a
modern wealthy country. So you can't judge these by the same
criteria. To talk about an industrial regulation is an economic
issue. When you are restricting what people, what the citizens
can do with their own computers that's not just an economic
issue any more. That's an issue of people's rights.
Among those users, in addition to the citizens, you also find
businesses. A large fraction of businesses use computers these days. And
software idea patents will tie up all those businesses in a new form of
bureaucracy, which is just going to make trouble for them. [60:00] Now I am not a neo-liberal. I am not
against regulating businesses when it serves the public good. But tying
businesses up in a bureaucracy that benefits nobody except the
mega-corporations and some parasites. That's not a good reason to do
it. So I call your attention to the big poster
up there showing many common things that could happen on an
e-commerce web site which are already patented by patents issued
by the European patent office.
See the European patent office was set up by a treaty which says
that software ideas are not allowed to be patented. The European
patent office basically gave the finger to this treaty and to
the governments of Europe and has issued over 30,000, I am told,
software idea patents. But whether these patents have any
validity is questionable because if somebody tried to sue
somebody else with one of these patents the court might say
"this patent is no good, the treaty says these things re
not patentable".
So now we're trying to retroactively legitimate these patents
through the current EU directive. Now this EU directive's main
intent, we think, is to authorise software idea patents. But
it's not just a directive about software idea patents. It's a
broader directive about patents. It covers patents on ideas that
relate in some way to the use of a computer for something. It
also includes other kinds of things such as setting up a factory
where a process is carried out and a computer decides how much
of this to do or when and so on. Now those are not
controversial. Nobody is actually arguing that those things
should not be patentable. But the same directive would also
legitimise patenting software ideas.
I actually don't have the quotation - I wonder if somebody else
would be able to read it - someone from the European Commission
admitted that the language of the directive was a trap designed
to look like - it's designed to make it possible for them to
give you the impression it's not authorising software idea
patents while in fact authorising them. It says that patents
must have a technical effect. Now what that means is anybody's
guess, so they can reinterpret that as they like later.
You know, causing the screen to be red instead of blue because
the program displays the colour red and not the colour
blue. That's a technical effect if they say it is. So the
directive was designed to sneakily authorise software idea
patents. A large amount of opposition has been generated
starting with the Free Software community but going far beyond
it.
Developers of proprietary software have joined in, including
well known companies. Developers of software for use within
organisations are objecting. The users are objecting - there's a
European organisation of 2 million small and medium enterprises
that has voted to oppose software idea patents. The economists
have helped by showing that these patents backfire even in their
own terms. And of course there are people in politics who
believe that we should all have the right to do any legitimate
thing with our own computers.
So together we convinced the European parliament to conclusively
reject software idea patents. The parliament in September [2003]
adopted many different amendments correcting every part of that
directive to exclude software idea patents but allow the other
patents - the patents on the industrial process where there's
some computers helping to carry that. Where there's some
specific physical activity which is the subject of the patents,
and is not merely the display of, or calculation of something.
[65:00]
And just recently [May 2004] in a preliminary vote the council
of ministers reversed most of the amendments that the parliament
made. Some strange things happened in that vote and we're hoping
that maybe some of the countries will change their minds when
this vote requires confirmation in a few weeks. But if that
doesn't happen then we're going to go to the European parliament
again. They voted to reject software idea patents once maybe
they will do it again. But there's about to be an election for
the European parliament, so it won't be the same
people. Nonetheless there were people in most of the parties
voting against software idea patents. What we've got to do is
confront the candidates from all the parties and at the same
time put them in contact with the people in their own party who
have thought about this issue and rejected software idea
patents. People that they can learn from - why this issue is
important and what's really at stake here. Most of them are not
programmers. Most of them have never written a program, that's
not their field. And they are vulnerable to being mislead by
arguments that any programmer would see through. For instance,
the US is number one in utilising computers, and the US has
software idea patents. That must be why, right? Well the US was
in the lead in utilising computers before it had software idea
patents. So that's clearly not the reason why.
And then they say "the laws have to be harmonised". If there's
a difference between US and European law then that would be impossible
to live with. Well why don't they go to the US and ask the US government
to change it's foolish laws. If the US has gang warfare and drug dealers
do you want Europe to have these too just for harmonisation? [laughter]
And they say "if the US allows software idea patents and Europe
does not then American companies will have an advantage". This is
really playing on peoples ignorance because it's just the opposite. The
US has it's own patent system which regulates everything that's done in
the US. And European countries have their patent systems that regulate
what happens in those countries. But anyone in the world can go the us
patent office or to the European patent office and apply for a
patent. So right now Europeans can apply for US software idea patents,
and have got them, and can then attack us poor American's at home.
For instance, people developing MP3 encoders were attacked by
the software patent that happens to belong to a European. That
didn't help us, we poor American's, we can be attacked and
kicked around by anybody in the world because our government has
a foolish policy. But if the European union rejects software
idea patents then European software developers will be safe at
home, and European software users will be safe period.
So it's just the opposite: as long as the European union rejects
software idea patents it has an advantage. But you know that
when things are messed up in the US, the US government doesn't
try to make them better it tries to mess up the rest of the
world, too [laughter]. And that's exactly what's happening
here. The US government is basically a flunky for the
mega-corporations and is trying to serve their interests by
lobbying for software idea patents in other countries. And in
many cases has signed bilateral trade agreements imposing
software idea patents on other countries. However, the EU is too
big to be bullied that way, so it's going to be up to you to
make sure that software idea patents don't threaten every
software developer and every computer user in the EU.
Now I think there are going to be some other people speaking
now. I'd like to mention that for those of you who happen to be
supporters of the GNU project
I've got some stickers to give out when people are done, and
I've got a few little fund-raising items like key-rings and pins
to sell. But this is not an event abut free software and GNU, so
I'll just do that at the end for those that are interested, and
now hand the floor over to other people.
[70:00]
