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www/philosophy danger-of-software-patents.html
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From: |
Yavor Doganov |
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Subject: |
www/philosophy danger-of-software-patents.html |
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Date: |
Fri, 13 Nov 2009 08:03:24 +0000 |
CVSROOT: /web/www
Module name: www
Changes by: Yavor Doganov <yavor> 09/11/13 08:03:24
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philosophy : danger-of-software-patents.html
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Fix typos and Britishisms. Minor formatting changes.
CVSWeb URLs:
http://web.cvs.savannah.gnu.org/viewcvs/www/philosophy/danger-of-software-patents.html?cvsroot=www&r1=1.3&r2=1.4
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@@ -9,103 +9,93 @@
on 8 October 2009 at Victoria University of Wellington.</p>
<dl>
-
<dt>SF:</dt>
-
<dd><p>My name is Susy Frankel and on behalf of myself and Meredith
Kolsky Lewis, I'd like to welcome you to this seminar hosted by the
-New Zealand Centre for International Economic Law. Brenda Chawner, who
-is part of the Victoria University School of Information Management,
-rather than the Centre I just named being part of the Law Faculty, is
-really responsible for bringing Richard Stallman back to New Zealand
-and hosting his tour of New Zealand, including this stop here in
-Wellington tonight. She's unfortunately unable to be with us at this
-moment because she's doing what we do in universities which is teach.
-</p>
+New Zealand Centre for International Economic Law. Brenda Chawner,
+who is part of the Victoria University School of Information
+Management, rather than the Centre I just named being part of the Law
+Faculty, is really responsible for bringing Richard Stallman back to
+New Zealand and hosting his tour of New Zealand, including this stop
+here in Wellington tonight. She's unfortunately unable to be with us
+at this moment because she's doing what we do in universities which is
+teach.</p>
+
+<p>So it's my pleasure to welcome you to the lecture “The Danger
+of Software Patents”. Richard Stallman has a suite of lectures
+that he offers, and after discussion with Brenda, I chose this topic
+precisely because for the first real time in New Zealand history, we
+have a somewhat prolonged, but important debate about patent law
+reform, and many of you in the room are responsible for the debate
+relating to software patents. So it seemed very topical, very timely.
+So thank you, Richard, for making that offer.</p>
-<p> So it's my pleasure to welcome you to the lecture 'The Danger of
-Software Patents'. Richard Stallman has a suite of lectures that he
-offers, and after discussion with Brenda, I chose this topic precisely
-because for the first real time in New Zealand history, we have a
-somewhat prolonged, but important debate about patent law reform, and
-many of you in the room are responsible for the debate relating to
-software patents. So it seemed very topical, very timely. So thank
-you, Richard, for making that offer. </p>
-
-<p> Richard Stallman needs little introduction. Nonetheless, for some
+<p>Richard Stallman needs little introduction. Nonetheless, for some
of you who have not heard of him previously, he has launched the
development of the GNU operating system. I had never heard GNU said
before, and I went online to YouTube (where would we be be without
-YouTube) </p>
-
-</dd>
+YouTube)…</p></dd>
<dt>RMS:</dt>
-
-<dd><p>Oh, you shouldn't recommend YouTube, because they distribute in a
patented video format.
-</p>
-
-</dd>
+<dd>Oh, you shouldn't recommend YouTube, because they distribute in a
+patented video format.</dd>
<dt>SF:</dt>
-
<dd>Good point. I only recommend it for the point that I thought do
you say G N U or GNU?</dd>
<dt>RMS:</dt>
-
<dd>Wikipedia says that.</dd>
<dt>SF:</dt>
-
-<dd>Yes, but live I heard you say it on YouTube. But nonetheless,
-the important point is that it's not proprietorial. But the most
-interesting point is that Richard has received many honours for his
-work. My favourite, and therefore the one that I'm going to mention,
+<dd>Yes, but live I heard you say it on YouTube. But nonetheless, the
+important point is that it's not proprietorial. But the most
+interesting point is that Richard has received many honors for his
+work. My favorite, and therefore the one that I'm going to mention,
is the Takeda Award for Social and Economic Betterment, and I imagine
we're going to hear a lot of that tonight, so join me in welcoming
Richard.</dd>
<dt>RMS:</dt>
-
<dd><p>First of all, I'd like to mention one of the reasons why I'm
drinking this is there's a worldwide boycott of Coca-Cola Company for
-murdering union organisers in Colombia. Look at the site <a
-href="http://killercoke.org";>killercoke.org</a>, and they're not
-talking about the effects of drinking the product, after the same
+murdering union organizers in Colombia. Look at the
+site <a href="http://killercoke.org";>killercoke.org</a>, and they're
+not talking about the effects of drinking the product, after the same
might be true of many other products. It's murder. So before you buy
any drink product, look at the fine print and see if it's made by
-Coca-Cola Company. </p>
+Coca-Cola Company.</p>
-<p> I'm most known for starting the free software movement and leading
+<p>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. </p>
+for something you can do on a computer.</p>
-<p> Now, to understand this issue, the first thing you need to realise
+<p>Now, to understand this issue, the first thing you need to realize
is that patent law has nothing to do with copyright law. They're
totally different. Whatever you learn about one of them, you can be
-sure it doesn't apply to the other. So, for example, any time a person
-makes a statement about "intellectual property" that's spreading
-confusion, because it's lumping together not only these two laws, but
-also at least a dozen others, and they're all different, and the
-result is any statement which purports to be about "intellectual
-property" is pure confusion. Either the person making the statement is
-confused, or the person is trying to confuse others. But either way,
-whether it's accidental or malicious, it's confusion. Protect yourself
-from this confusion by rejecting any statement which makes use of that
-term. The only way to make thoughtful comments and think clear
-thoughts about any one of these laws is to distinguish it first from
-all the others, and talk or think about one particular law, so that we
-can understand what it actually does and then form conclusions about
-it. So I'll be talking about patent law, and what happens in those
-countries which have allowed patent law to restrict software. </p>
+sure it doesn't apply to the other. So, for example, any time a
+person makes a statement about “intellectual property”
+that's spreading confusion, because it's lumping together not only
+these two laws, but also at least a dozen others, and they're all
+different, and the result is any statement which purports to be about
+“intellectual property” is pure confusion. Either the
+person making the statement is confused, or the person is trying to
+confuse others. But either way, whether it's accidental or malicious,
+it's confusion. Protect yourself from this confusion by rejecting any
+statement which makes use of that term. The only way to make
+thoughtful comments and think clear thoughts about any one of these
+laws is to distinguish it first from all the others, and talk or think
+about one particular law, so that we can understand what it actually
+does and then form conclusions about it. So I'll be talking about
+patent law, and what happens in those countries which have allowed
+patent law to restrict software.</p>
-<p> So, what does a patent do? A patent is an explicit,
+<p>So, what does a patent do? A patent is an explicit,
government-issued monopoly on using a certain idea, and 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
@@ -119,54 +109,54 @@
may be, it's at least in some aspect 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. </p>
+enough to have such a policy.</p>
-<p> Most of the time, when people describe the function of the patent
+<p>Most of the time, when people describe the function of the patent
system, they have a vested interest in the system. They may be patent
lawyers, or they may work in the Patent Office, or they may be in the
patent office of a megacorporation, so they want you to like the
-system. The Economist once referred to the patent system as "a
-time-consuming lottery". And 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. And 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. And it's the
-same way for the publicity for the patent system. They talk about what
-it's like to walk down the street with a patent in your pocket, or
-first of all, what it's like to get a patent, then what it's like to
-have a patent in your pocket, and every so often you can pull it out
-and point it at somebody and say 'give me your money'. To compensate
-for their bias, I'm going to describe it from the other side, the
-victim side. What it's like for people who want to develop or
-distribute or run software. You have to worry that any day someone
-might walk up to you and point a patent at you and say give me your
-money. If you want to develop software in a country that allows
-software patents, and you want to work with patent law, what will you
-have to do? </p>
+system. The Economist once referred to the patent system as “a
+time-consuming lottery”. And 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. And 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. And it's the same way for the publicity for the patent system.
+They talk about what it's like to walk down the street with a patent
+in your pocket, or first of all, what it's like to get a patent, then
+what it's like to have a patent in your pocket, and every so often you
+can pull it out and point it at somebody and say “give me your
+money”. To compensate for their bias, I'm going to describe it
+from the other side, the victim side. What it's like for people who
+want to develop or distribute or run software. You have to worry that
+any day someone might walk up to you and point a patent at you and say
+give me your money. If you want to develop software in a country that
+allows software patents, and you want to work with patent law, what
+will you have to do?</p>
-<p> You could try to make a list of all the ideas that one might be
+<p>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. Even
-after you finish writing the program you wouldn't be able to make such
-a list, and the reason is, even after you designed the program, and 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. </p>
+fact that you don't know that when you start writing the program.
+Even after you finish writing the program you wouldn't be able to make
+such a list, and the reason is, even after you designed the program,
+and 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.</p>
-<p> For instance, suppose there were graphical idea patents and you
-wanted to draw a square. Well, you would realise that if there was a
+<p>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 realise that somebody else with a patent on
-bottom corners could sue you easily also, because he could take you
+“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 you
drawing and turn it by 45 degrees and now your square is like this,
and it has a bottom corner. So you couldn't make a list of all the
ideas which, if patented, could prohibit your program. So what you
@@ -175,37 +165,38 @@
applications are kept secret for at least eighteen 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, that could happen. </p>
+theoretical possibility, that could happen.</p>
-<p> For instance, in 1984 the Compress program was written, a program
-for compressing files using the LZW data compression algorithm, and at
-that time there was no patent on that algorithm for compressing
-files. The author found, got the algorithm from an article in a
-journal. That was when we thought that the purpose of computer science
-journals was to publish algorithms so people could use them. He wrote
-this program, he released it, and in 1985 a patent was issued on that
-algorithm. But the patent holder was cunning and didn't immediately go
-around telling people to stop using it. The patent holder figured
-'let's let everybody dig their grave deeper'. But a few years later
-they started threatening people; it became clear we couldn't use
-Compress, so I asked for people to suggest other algorithms we could
-use for compressing files, and somebody wrote and said I developed
-another data compression algorithm that works better, I've written a
-program, I'd like to give it to you. So we got ready to release it,
-and a week before it was ready to be released, I read in the New York
-Times weekly patent column, which I rarely saw, it's a couple of times
-a year I might see it, but just by luck I saw that someone had gotten
-a patent for "inventing a new method of compressing data", and so I
-said we had better look at this, and sure enough it covered the
-program we were about to release. But it could have been worse, the
-patent could have been issued a year later, or two years later, or
+<p>For instance, in 1984 the Compress program was written, a program
+for compressing files using the <acronym title="Lempel-Ziv-Welch">
+LZW</acronym> data compression algorithm, and at that time there was
+no patent on that algorithm for compressing files. The author found,
+got the algorithm from an article in a journal. That was when we
+thought that the purpose of computer science journals was to publish
+algorithms so people could use them. He wrote this program, he
+released it, and in 1985 a patent was issued on that algorithm. But
+the patent holder was cunning and didn't immediately go around telling
+people to stop using it. The patent holder figured “let's let
+everybody dig their grave deeper”. But a few years later they
+started threatening people; it became clear we couldn't use Compress,
+so I asked for people to suggest other algorithms we could use for
+compressing files, and somebody wrote and said I developed another
+data compression algorithm that works better, I've written a program,
+I'd like to give it to you. So we got ready to release it, and a week
+before it was ready to be released, I read in the New York Times
+weekly patent column, which I rarely saw, it's a couple of times a
+year I might see it, but just by luck I saw that someone had gotten a
+patent for “inventing a new method of compressing data”,
+and so I said we had better look at this, and sure enough it covered
+the program we were about to release. But it could have been worse,
+the patent could have been issued a year later, or two years later, or
three years later, or five years later. Anyway, someone else came up
with another, even better compression algorithm, which was used in the
-program gzip, and just about everybody who wanted to compress files
-switched to gzip, so it sounds like a happy ending. But you'll hear
-more later. It's not entirely so happy. </p>
+program <tt>gzip</tt>, and just about everybody who wanted to compress
+files switched to <tt>gzip</tt>, so it sounds like a happy ending.
+But you'll hear more later. It's not entirely so happy.</p>
-<p> So, you can't find out about the patents that are being considered
+<p>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
@@ -213,74 +204,76 @@
thousands 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. </p>
+won't necessarily find them all.</p>
-<p> 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's 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 face, 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'. </p>
+<p>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's 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”.</p>
-<p> So if you had tried to find, if you were writing a spreadsheet and
+<p>So if you had tried to find, 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 somebody,
-you told somebody "Oh, I'm working on a spreadsheet" and he said "Oh,
-did you know those other companies that are making spreadsheets are
-getting sued?". Then you would have found out. Well, you can't find
-all the patents by searching, but you can find a lot of them and then
-you've got to figure out what they mean, which is hard, because
-patents are written in tortuous legal language which is very hard to
-understand the real meaning of, so you're going to have to spend a lot
-of time talking with an expensive lawyer explaining what you want to
-do in order to find out from the lawyer whether you're allowed to do
-it. Now, even the patent holders often can't recognise just what their
-patents mean. </p>
-
-<p> 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. Now 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
+you told somebody “Oh, I'm working on a spreadsheet” and
+he said “Oh, did you know those other companies that are making
+spreadsheets are getting sued?”. Then you would have found out.
+Well, you can't find all the patents by searching, but you can find a
+lot of them and then you've got to figure out what they mean, which is
+hard, because patents are written in tortuous legal language which is
+very hard to understand the real meaning of, so you're going to have
+to spend a lot of time talking with an expensive lawyer explaining
+what you want to do in order to find out from the lawyer whether
+you're allowed to do it. Now, even the patent holders often can't
+recognize just what their patents mean.</p>
+
+<p>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. Now
+I once tried to find a simple way to describe what claim 1 of one of
+those patents covered. I found that I couldn't find any simpler way
+of saying it than what was in the patent itself, and that sentence, I
couldn't manage to keep it all in my mind at once, no matter how hard
I tried. And Heckel couldn't follow it either, because when he saw
HyperCard, all he noticed was it was nothing like his program, it
didn't occur to him that the way his patent was written it might
-prohibit Hypercard, but his lawyer had that idea, so he threatened
+prohibit HyperCard, but his lawyer had that idea, so he threatened
Apple, and then he threatened Apple's customers, and eventually Apple
made a settlement with him which is secret, so we don't know who
really won. And this is just an illustration of how hard it is for
-anybody to understand what a patent does or doesn't prohibit. In fact,
-I once gave this speech and Heckel was in the audience, and at this
-point he jumped up and said that's not true, I just didn't know the
-scope of my protection. And I said Yeah, that's what I said, at which
-point he sat down and that was the end of my experience being heckled
-by Heckel. If I had said no, he probably would have found a way to
-argue with me. Anyway, so, after a long, expensive conversation with a
-lawyer, the lawyer will give you an answer like this. If you do
-something in this area you're almost certain to lose a lawsuit. If you
-do something in this area there's a considerable chance of losing a
-lawsuit, and if you really want to be safe you've got to stay out of
-this area, but there's a sizeable element of chance in the outcome of
-any lawsuit. </p>
+anybody to understand what a patent does or doesn't prohibit. In
+fact, I once gave this speech and Heckel was in the audience, and at
+this point he jumped up and said “That's not true, I just didn't
+know the scope of my protection.” And I said “Yeah, that's
+what I said,” at which point he sat down and that was the end of
+my experience being heckled by Heckel. If I had said no, he probably
+would have found a way to argue with me. Anyway, so, after a long,
+expensive conversation with a lawyer, the lawyer will give you an
+answer like this:</p>
+
+<blockquote><p>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 sizable
+element of chance in the outcome of any lawsuit.</p></blockquote>
-<p> So now that you have clear, predictable rules for doing business,
+<p>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. </p>
+invalidate it. So I'll talk about these one by one.</p>
-<p> First, there's the possibility of avoiding the patent, which means
+<p>First, there's the possibility of avoiding the patent, which means
don't implement what it prohibits. Of course, if it's hard to tell
what it prohibits, it might be hard to tell what would suffice to
avoid it. A couple of years ago Kodak sued Sun using a patent for
@@ -288,148 +281,154 @@
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. But sometimes you can tell what you need to avoid, and sometimes
-what you need to avoid is an algorithm. </p>
-
-<p> 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
+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. But sometimes you can tell what you need to
+avoid, and sometimes what you need to avoid is an algorithm.</p>
+
+<p>For instance, I saw a patent for something like the fast Fourier
+transform, but it ran twice as fast. Well, if the ordinary FFT is
+fast enough for your application then that's an easy way to avoid this
other one. And most of the time that would work. Once in a while you
might be trying to do something where it runs doing FFT all the time,
and it's just barely fast enough using the faster algorithm, and then
you can't avoid it, although maybe you could wait a couple of years
for a faster computer. But that's going to be rare. Most of the time
-that patent will to be easy to avoid. On the other hand, a patent on
-an algorithm may be impossible to avoid. Consider the LZW data
+that patent will be easy to avoid. On the other hand, a patent on an
+algorithm may be impossible to avoid. Consider the LZW data
compression algorithm. Well, as I explained we found a better data
compression algorithm, and everybody who wanted to compress files
-switched to the program gzip which used the better algorithm. And the
-reason is, if you just want to compress the file and uncompress it
-later, you can tell people to use this program to uncompress it, then
-you can use any program with any algorithm, and you only care how well
-it works. But LZW is used for other things too, for instance the
-PostScript language specifies operators for LZW compression and LZW
-uncompression. It's no use having another, better algorithm, because
-it makes a different format of data. They're not interoperable. If you
-compress it with the gzip algorithm, you won't be able to uncompress
-it using LZW. So no matter how good your other algorithm is, and no
-matter what it is, it just doesn't enable you to implement PostScript
-according to the specs. But I noticed that users rarely ask their
-printers to compress things. Generally the only thing they want their
-printers to do is to uncompress, and I also noticed that both of the
-patents on the LZW algorithm were written in such a way that if your
-system can only uncompress it's not covered, 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 realised 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 that patent, the two patents. </p>
-
-<p> 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', and I think it uses the
-gzip algorithm, and I think 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 may
-implement it someday, but there's not much demand from users. Well,
-it's pretty obvious what's going on. gif was a de facto standard. In
-effect, asking people to switch to a different format, instead of
-their de facto standard, is like asking everyone in New Zealand to
-speak Hungarian. People will say "well, yeah, I'll learn to speak it
-after everyone else does". And so we never succeeded in asking people
-to stop using gif, even though one of those patent holders at least
-was going around to operators of web sites, threatening to sue them
-unless they could prove that all of the gif on the site were made with
-authorised, licensed software. So gif was a dangerous trap for a large
-part of our community. Now we thought we had an alternative to gif
-format, namely jpeg, but then somebody said "I was just looking
-through my portfolio of patents, I think it was somebody that just
-bought patents and used them to threaten people, and he said "and I
-found that one of them covers jpeg format". Well, jpeg was not a de
-facto standard, it's an official standard, issued by a standards
-committee, and the committee had a lawyer too. Their lawyer said he
-didn't think that this patent actually covered jpeg format . So who's
-right? Well, this patent holder sued a bunch of companies, and if
-there was a decision, it would have said who was right, but I haven't
-heard about a decision, I'm not sure if there ever was one. I think
-they settled, and the settlement is almost certainly secret, which
-means that it didn't tell us anything about who's right. </p>
-
-<p> So 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 ones, which applications and patents you need to
-compare. You see, in physical engineering fields, they can use the
-physical nature of what's going on to narrow things down. For
-instance, in chemical engineering, they can say what are the
-substances going in, what are the substances coming out, and if two
-different applications are different in that way, then they're not the
-same process so you don't need to worry. But math can be represented,
-the same math can be represented in ways that can look very different,
-and until you study them both together, you don't realise they're
-talking about the same thing. And, because of this, it's quite common
-to see the same thing get patented multiple times. 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. </p>
-
-<p> 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.
-</p>
+switched to the program <tt>gzip</tt> which used the better algorithm.
+And the reason is, if you just want to compress the file and
+uncompress it later, you can tell people to use this program to
+uncompress it, then you can use any program with any algorithm, and
+you only care how well it works. But LZW is used for other things
+too, for instance the PostScript language specifies operators for LZW
+compression and LZW uncompression. It's no use having another, better
+algorithm, because it makes a different format of data. They're not
+interoperable. If you compress it with the <tt>gzip</tt> algorithm,
+you won't be able to uncompress it using LZW. So no matter how good
+your other algorithm is, and no matter what it is, it just doesn't
+enable you to implement PostScript according to the specs. But I
+noticed that users rarely ask their printers to compress things.
+Generally the only thing they want their printers to do is to
+uncompress, and I also noticed that both of the patents on the LZW
+algorithm were written in such a way that if your system can only
+uncompress it's not covered, 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 that patent, the two patents.</p>
+
+<p>Now there is <tt>gif</tt> format, for images. That uses the LZW
+algorithm also. It didn't take long for people to define another
+image format, called <tt>png</tt>, which stands for
+“<tt>png</tt>'s not <tt>gif</tt>”, and I think it uses
+the <tt>gzip</tt> algorithm, and I think we started saying to people
+don't use <tt>gif</tt> format, it's dangerous, switch to <tt>png</tt>,
+and the users said well, maybe some day, but the browsers don't
+implement it yet, and the browser may implement it someday, but
+there's not much demand from users. Well, it's pretty obvious what's
+going on. <tt>gif</tt> 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 <tt>gif</tt>, even though one of those patent holders at
+least was going around to operators of web sites, threatening to sue
+them unless they could prove that all of the <tt>gif</tt> on the site
+were made with authorized, licensed software. So <tt>gif</tt> was a
+dangerous trap for a large part of our community. Now we thought we
+had an alternative to <tt>gif</tt> format, namely <tt>jpeg</tt>, 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 <tt>jpeg</tt> format”. Well, <tt>jpeg</tt> 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 <tt>jpeg</tt>
+format. So who's right? Well, this patent holder sued a bunch of
+companies, and if there was a decision, it would have said who was
+right, but I haven't heard about a decision, I'm not sure if there
+ever was one. I think they settled, and the settlement is almost
+certainly secret, which means that it didn't tell us anything about
+who's right.</p>
+
+<p>So these are fairly lightweight cases, one patent on <tt>jpeg</tt>,
+two patents on the LZW algorithm used in <tt>gif</tt>. 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 ones, which applications and
+patents you need to compare. You see, in physical engineering fields,
+they can use the physical nature of what's going on to narrow things
+down. For instance, in chemical engineering, they can say what are
+the substances going in, what are the substances coming out, and if
+two different applications are different in that way, then they're not
+the same process so you don't need to worry. But math can be
+represented, 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.
+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.</p>
+
+<p>But one or two patents is a lightweight case. What
+about <tt>mpeg2</tt>, 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 <tt>jpeg</tt> 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.</p>
-<p> Sometimes it's a feature that's patented, and the only to avoid
+<p>Sometimes it's a feature that's patented, and the only to avoid
that patent is not to implement that feature. For instance, the users
of the word processor Xywrite once got a downgrade in the mail, which
removed a feature. The feature was that you could define a list of
-abbreviations, for instance, if you define exp as an abbreviation for
-experiment, then if you type exp-space or exp-comma, the exp would
-change automatically to experiment. Then somebody who had a patent on
-this feature threatened them and they concluded that the only thing
-they could do was to take the feature out. And so they sent all the
-users a downgrade. But they also contacted me, because my emacs editor
-had a feature like that starting from the late 70s, and it was
-described in the emacs manual, so they thought I might be able to help
-them invalidate that patent. Well, I'm happy to know I've had at least
-one patentable idea in my life, but I'm unhappy that someone else
-patented it. Fortunately in fact that patent was eventually
-invalidated, and partly on the strength of the fact that I had
-published using it earlier. But in the meantime they had had to remove
-this feature. Now, to remove one or two features may not be a
-disaster. But when you have to remove 50 features, you could do it,
-but people are likely to say this program's no good, it's missing all
-the features I want, so it may not be a solution. And sometimes a
-patent is so broad that it wipes out an entire field, like the patent
-on public key encryption, which in fact put public key encryption
-basically off limits for about ten years. So that's the option of
-avoiding the patent, often possible, but sometimes not, and there's a
-limit to how many patents you can avoid. </p>
+abbreviations, for instance, if you define <tt>exp</tt> as an
+abbreviation for experiment, then if you type exp-space or exp-comma,
+the <tt>exp</tt> would change automatically to experiment. Then
+somebody who had a patent on this feature threatened them and they
+concluded that the only thing they could do was to take the feature
+out. And so they sent all the users a downgrade. But they also
+contacted me, because my Emacs editor had a feature like that starting
+from the late 70s, and it was described in the Emacs manual, so they
+thought I might be able to help them invalidate that patent. Well,
+I'm happy to know I've had at least one patentable idea in my life,
+but I'm unhappy that someone else patented it. Fortunately in fact
+that patent was eventually invalidated, and partly on the strength of
+the fact that I had published using it earlier. But in the meantime
+they had had to remove this feature. Now, to remove one or two
+features may not be a disaster. But when you have to remove 50
+features, you could do it, but people are likely to say this program's
+no good, it's missing all the features I want, so it may not be a
+solution. And sometimes a patent is so broad that it wipes out an
+entire field, like the patent on public key encryption, which in fact
+put public key encryption basically off limits for about ten years.
+So that's the option of avoiding the patent, often possible, but
+sometimes not, and there's a limit to how many patents you can
+avoid.</p>
-<p> What about the next possibility, of getting a license for the
+<p>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 which were of course computerised, and he had been
-threatened by a patent holder who said, 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, if, suppose, 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
+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 said, 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, if, suppose, 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
@@ -438,36 +437,37 @@
it. If it had occurred to you that you could get a monopoly on this
trivial thing, and 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? </p>
+and trivial to us?</p>
-<p> It's not because the patent examiners are stupid, it's because
+<p>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
+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 <tt>n</tt> times, for us that's a <code>for</code>
+loop, but for the Patent Office that's an invention. If there are
+machines that can do <tt>a</tt>, and there are machines that can
+do <tt>b</tt>, and somebody designs a machine that can do <tt>a</tt>
+or <tt>b</tt>, for us that's an <code>if, then, else</code> 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 licences for almost all the patents. </p>
+painlessly with licenses for almost all the patents.</p>
-<p> IBM wrote an article in its house magazine, Think Magazine, and I
+<p>IBM wrote an article in its house magazine, Think Magazine, and I
think it's issue 5 1990, and it's about the benefit IBM got from the
-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
+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
@@ -477,10 +477,10 @@
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. </p>
+get into IBM's league, no matter what you do.</p>
-<p> 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
+<p>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
@@ -489,211 +489,213 @@
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 they 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. </p>
-
-<p> "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. </p>
+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:</p>
+
+<blockquote><p>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.</p></blockquote>
+
+<p>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.</p>
-<p> So let's look at it. According to this scenario, there's a
+<p>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 market the away, and because of this his
+compete with him and take all the market 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. </p>
+let's look at all the unlikely assumptions here.</p>
-<p> 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
+<p>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. Like more than 95% 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
+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. </p>
+starve, because somebody will want to give him a job.</p>
-<p> 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,
+<p>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 realise 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. </p>
+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.</p>
-<p> The patent might protect him from competition from your or me, but
+<p>The patent might protect him from competition from you or me, but
not from IBM, not from the very megacorporations which are supposed to
be 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 favour of it. But this
-explains why they won't do it. </p>
+were going to do that, they wouldn't be in favor of it. But this
+explains why they won't do it.</p>
-<p> Even IBM can't always do this, because there are companies that we
+<p>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. </p>
-
-<p> 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 we can't possibly fulfil, 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 dollars, but I don't
-know if it's 50 dollars, 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 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. </p>
+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.</p>
+
+<p>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 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 dollars, but I don't know if it's 50
+dollars, 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 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.</p>
-<p> The other possibility is to invalidate the patent. If the country
+<p>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. The only way you can prove it doesn't, 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 favourably 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.
-</p>
-
-<p> 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
+only question is whether that particular patent meets the criteria.
+The only way you can prove it doesn't, 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.</p>
+
+<p>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's 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% 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%, 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. </p>
+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's 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% 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%, 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.</p>
-<p> Software patents are a mess. They're a mess for software
+<p>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? </p>
+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?</p>
-<p> There is an important basic difference between fields in regard to
+<p>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 in any one product there
-is one patent, and that patent covers the overall design of that
+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 in 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. </p>
+and you will have an opportunity to get “the patent” on
+that product. That's not how things work.</p>
-<p> In the 1800s, maybe they did, but not now. In fact, fields fall on
+<p>In the 1800s, maybe they did, but not now. In fact, fields fall on
a spectrum of how many patents per product. The beginning of the
spectrum is one, but no field is like that today, but fields are at
various places on this spectrum. The field that's closest to that is
@@ -702,10 +704,10 @@
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. </p>
+drug. But that's not how it works now.</p>
-<p> 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
+<p>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 wont' be
hundreds. And the reason is our ability to do biochemical engineering
@@ -721,99 +723,102 @@
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. So we can make a castle that
-rests on a mathematically thin line, and it stays up because nothing
-weighs anything. </p>
+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. So we can make a castle
+that rests on a mathematically thin line, and it stays up because
+nothing weighs anything.</p>
-<p> There's so many complications you have to cope with in physical
+<p>There's 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 induce radio frequency signals, 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
+put an <code>if</code> statement inside of a <code>while</code> loop,
+I don't have to worry that if this <code>while</code> loop repeats at
+the wrong rate, the <code>if</code> 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 induce radio frequency signals, 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 <code>if</code> statement and the <code>while</code>
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
-make a master out of anything, write any data I want, I can make a
+anymore. I don't have to worry about how the heat generated by
+my <code>if</code> statement is going to get out through
+the <code>while</code> statement so that it doesn't make
+the <code>if</code> statement burn out. And I don't have to worry
+about how I would take out the broken <code>if</code> statement if it
+does crack, burn, or corrode, and replace it with
+another <code>if</code> statement to make the program run again. For
+that matter, I don't have to worry about how I'm going to insert the
+<code>if</code> statement inside the <code>while</code> 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 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
+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
non-repeating 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
+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. </p>
+matter.</p>
-<p> A lawyer did a study of one particular large program, namely the
+<p>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, and, this was like 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% 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. </p>
-
-<p> To explain this - programmers can understand this immediately, but
-politicians usually don't know much about programming - they can't
-appreciate this, they usually imagine that patents are basically much
-like copyrights, only somehow stronger. They imagine that since
+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.</p>
+
+<p>To explain this—programmers can understand this immediately,
+but politicians usually don't know much about programming—they
+can't appreciate this, 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, OK, well if you write a program, so 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?
-</p>
+patents would really do? What they really do in countries like the
+US?</p>
-<p> I find it's useful to make an analogy between software and
+<p>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. 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. </p>
+and say “Hey, how do you like this combination?”. You
+can't hear that. 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.</p>
-<p> So imagine that it's the 1700s and the governments of Europe
-decide that they want to promote the progress of symphonic music by
+<p>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
@@ -822,69 +827,65 @@
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
-existed. 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?". </p>
+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 existed. 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?”.</p>
-<p> Now Beethoven had ideas of his own. The reason he's considered a
+<p>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
+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.
-</p>
+the well-known ideas, and make something that people want to use.</p>
-<p> When the technological context changes so frequently, you end up
+<p>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,
+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 Organisation, which they
-did. But they designed 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. </p>
+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 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.</p>
-<p> Now I've heard it said that the reason New Zealand is considering
+<p>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. </p>
+will make more money is the absolute opposite of statesmanship.</p>
-<p> So, at this point, I'd like to ask for questions. </p>
-
-</dd>
+<p>So, at this point, I'd like to ask for questions.</p></dd>
<dt>Q.</dt>
-
<dd>What is the alternative?</dd>
<dt>A.</dt>
-
<dd>No software patents. I know that that works fine. I was in the
field when there were no software patents, and that meant people
developed software, and they distributed that software in various
@@ -894,29 +895,25 @@
there.</dd>
<dt>Q.</dt>
-
<dd>How do the developers get rewarded?</dd>
<dt>A.</dt>
-
-<dd>Many ways. Software patents have nothing to do with that. Remember
-if you're a software developer, software patents don't help you get
-whatever you want to get, different software developers want different
-things. I developed some important software in the 1980s, and the
-reward I wanted was to see people using computers in freedom. And I
-got that reward, although not totally. Not everybody has freedom. But
-software patents would only have stopped me. Other people developed
-programs because they wanted money. Software patents threaten them,
-too, and still threaten them, because you're not going to make any
-money if patent holders demand that you give it all to them, or if
-they make you shut down.</dd>
+<dd>Many ways. Software patents have nothing to do with that.
+Remember if you're a software developer, software patents don't help
+you get whatever you want to get, different software developers want
+different things. I developed some important software in the 1980s,
+and the reward I wanted was to see people using computers in freedom.
+And I got that reward, although not totally. Not everybody has
+freedom. But software patents would only have stopped me. Other
+people developed programs because they wanted money. Software patents
+threaten them, too, and still threaten them, because you're not going
+to make any money if patent holders demand that you give it all to
+them, or if they make you shut down.</dd>
<dt>Q.</dt>
-
-<dd>How do you prevent plagiarism and still </dd>
+<dd>How do you prevent plagiarism and still…</dd>
<dt>A.</dt>
-
<dd>Plagiarism has nothing to do with this issue. It has absolutely
nothing to do with this issue. Plagiarism means copying the text of a
work and claiming to have written it yourself. But patents are not
@@ -928,8 +925,8 @@
and they can then all sue you. So you don't even have to worry, long
before you get to the point where somebody else might copy it, you're
going to be getting the shaft. You are confusing patents with
-copyrights, I'm afraid. They have nothing in common. I've explained to
-you what the patent system does to software, but I think you don't
+copyrights, I'm afraid. They have nothing in common. I've explained
+to you what the patent system does to software, but I think you don't
believe me because you've heard what copyrights do and you're
confusing the two, so these impressions you've got about what
copyrights do, you're just assuming that patents do them also, and
@@ -945,44 +942,37 @@
copyright law is only concerned with the details of authorship of a
work, so it has nothing in common with patent law in terms of what it
deals with, and the effects are totally different. Now I'm not in
-favour personally of all the things that people do with copyright law,
-I've criticised it, but it's a totally different, unrelated issue. If
+favor personally of all the things that people do with copyright law,
+I've criticized it, but it's a totally different, unrelated issue. If
you think that patent law helps somebody who is developing software,
it means that you have got a completely wrong picture of what patent
law actually does.</dd>
<dt>Q.</dt>
-
<dd>Don't get me wrong. I'm on your side.</dd>
<dt>A.</dt>
-
<dd>OK, but still you've got a wrong picture. I'm not blaming you for
it, because you've just been misinformed.</dd>
<dt>Q.</dt>
-
<dd>If I'm writing software for commercial purposes, do I get good
protection by treating it as a black box and keeping it secret?</dd>
<dt>A.</dt>
-
-<dd>I don't want to discuss that question because I'm not in favour of
+<dd>I don't want to discuss that question because I'm not in favor of
it, I think it's unethical to do that, but that's an unrelated
issue.</dd>
<dt>Q.</dt>
-
<dd>I understand that.</dd>
<dt>A.</dt>
-
<dd>I don't want to change the subject and then praise something that
I think is bad. But because it's a change of subject I'd rather not
get into that.</dd>
<dt>Q.</dt>
-
<dd>Our Foundation for Research, Science, and Technology, I think
they're probably the equivalent of your National Science Foundation,
provides grants for research and development and one of the things
@@ -990,156 +980,139 @@
should be secured if possible by patents.</dd>
<dt>A.</dt>
-
<dd>That shouldn't be the case in software, because software ideas
-shouldn't be patentable ever by anyone. But what you are seeing there,
-more generally, is an example of the general corruption of our society
-by putting commercial aims above all others. Now I'm not a communist
-and I don't want to abolish business, but when it becomes business
-above all, every aspect of life, oriented towards business, that is
-dangerous.</dd>
+shouldn't be patentable ever by anyone. But what you are seeing
+there, more generally, is an example of the general corruption of our
+society by putting commercial aims above all others. Now I'm not a
+communist and I don't want to abolish business, but when it becomes
+business above all, every aspect of life, oriented towards business,
+that is dangerous.</dd>
<dt>Q.</dt>
-
<dd>So Richard, if you talk to the Foundation, perhaps you might
propose that there are better ways for a small country like New
Zealand to make money on software.</dd>
<dt>A.</dt>
-
-<dd>Software patents don't help anybody make money out of
-software. They mean that you're in danger of getting sued when you
-try.</dd>
+<dd>Software patents don't help anybody make money out of software.
+They mean that you're in danger of getting sued when you try.</dd>
<dt>Q.</dt>
-
<dd>Which makes it difficult for New Zealand as a country to build an
economic base using software as part of that.</dd>
<dt>A.</dt>
-<dd>Sorry, when you say 'which' I don't know what you are referring
-to. Software patents will make it difficult for anyone, if New Zealand
-allows software patents, that will make it difficult in New Zealand
-for anybody to develop programs and distribute them, because you'll be
-in danger of getting sued. Software patents have nothing to do with
-developing a program and then putting it to some use.</dd>
+<dd>Sorry, when you say “which” I don't know what you are
+referring to. Software patents will make it difficult for anyone, if
+New Zealand allows software patents, that will make it difficult in
+New Zealand for anybody to develop programs and distribute them,
+because you'll be in danger of getting sued. Software patents have
+nothing to do with developing a program and then putting it to some
+use.</dd>
<dt>Q.</dt>
-
<dd>So New Zealand, in terms of its economic development, it would be
better protected by having no software patents.</dd>
<dt>A.</dt>
-
<dd>Yes. You see, each country has its own patent system, and they
work independently except that countries have signed up to a treaty
-that says 'if you have got a patent in that country, you can basically
-bring your application over here, and we'll judge it based on the year
-you applied for it over there. But other than that, each country has
-its own criteria for what can be patented and has its own set of
-patents. So the result is if the US allows software patents and New
-Zealand does not, that means that everybody in the world, including
-New Zealanders, can get US software patents and sue us poor Americans
-at home. But, if New Zealand doesn't allow software patents that means
-that neither you nor we can get New Zealand software patents to sue
-you New Zealanders at home. You can be sure that almost all the
-software patents will belong to foreigners who will use them to
-basically kick any New Zealand software developers whenever they get
-the chance.</dd>
+that says “if you have got a patent in that country, you can
+basically bring your application over here, and we'll judge it based
+on the year you applied for it over there”. But other than
+that, each country has its own criteria for what can be patented and
+has its own set of patents. So the result is if the US allows
+software patents and New Zealand does not, that means that everybody
+in the world, including New Zealanders, can get US software patents
+and sue us poor Americans at home. But, if New Zealand doesn't allow
+software patents that means that neither you nor we can get New
+Zealand software patents to sue you New Zealanders at home. You can
+be sure that almost all the software patents will belong to foreigners
+who will use them to basically kick any New Zealand software
+developers whenever they get the chance.</dd>
<dt>Q.</dt>
-
-<dd>Since the Hughes Aircraft case, I think it was in the 1990s</dd>
+<dd>Since the Hughes Aircraft case, I think it was in the 1990s.</dd>
<dt>A.</dt>
-
<dd>I don't know about that case.</dd>
<dt>Q.</dt>
-
<dd>But basically New Zealand's had software patents. It's not like
we're going into a field where we don't already have them, we do.</dd>
<dt>A.</dt>
-
<dd>I don't know, but I'm told that there's a decision being made now
at the legislative level of whether to allow them. But Patent Offices
-often respond to lobbying from megacorporations through WIPO. WIPO, as
-you can tell from its name, which is the World Intellectual Property
-Organisation, is up to no good, because any use of that term is
-spreading confusion. WIPO gets a lot of its funds from
+often respond to lobbying from megacorporations through WIPO. WIPO,
+as you can tell from its name, which is the World Intellectual
+Property Organization, is up to no good, because any use of that term
+is spreading confusion. WIPO gets a lot of its funds from
megacorporations, and uses those funds to bring officials from Patent
Offices to idyllic resort destinations for training. What they train
them to do is twist the law to allow patents in areas where they're
not supposed to be allowed. You've seen, in many countries there are
laws and court decisions which say that software as such can't be
-patented, algorithms can't be patented, or 'mathematical' algorithms
-can't be patented, no one's quite sure what it means for an algorithm
-to be mathematical or not, and various other criteria which if
-interpreted naturally would rule out software patents, but the patent
-offices twist the law to allow them anyway. For instance, a lot of
-things which practically speaking are software patents, have the form
-where the describe a system involving a central processing unit, a
-memory, input/output facilities, instruction-fetching facilities, and
-means to perform this particular computation. In effect what they've
-done is, they've written explicitly into the patent all the parts of
-an ordinary computer, and then they say 'well, this is a physical
-system which we would like to patent, but really it's just patenting
-certain software on a computer. There are many subterfuges that
-they've used. Patent Offices will generally try to twist the law into
-allowing more patents. In the US software patents were created by a
-court decision in 1982, in the Appeals Court that deals with all
-patent cases, which misunderstood a Supreme Court decision from the
-previous year, and misapplied it. Now it looks like that Appeals Court
-has finally changed its mind, and its come to the conclusion that it
-was mistaken all along, and it looks like this decision will get rid
-of all software patents, unless the Supreme Court reverses it. The
-Supreme Court is now considering it, and within less than a year we
-should find out whether we've won or lost.</dd>
+patented, algorithms can't be patented, or “mathematical”
+algorithms can't be patented, no one's quite sure what it means for an
+algorithm to be mathematical or not, and various other criteria which
+if interpreted naturally would rule out software patents, but the
+patent offices twist the law to allow them anyway. For instance, a
+lot of things which practically speaking are software patents, have
+the form where they describe a system involving a central processing
+unit, a memory, input/output facilities, instruction-fetching
+facilities, and means to perform this particular computation. In
+effect what they've done is, they've written explicitly into the
+patent all the parts of an ordinary computer, and then they say
+“well, this is a physical system which we would like to
+patent”, but really it's just patenting certain software on a
+computer. There are many subterfuges that they've used. Patent
+Offices will generally try to twist the law into allowing more
+patents. In the US software patents were created by a court decision
+in 1982, in the Appeals Court that deals with all patent cases, which
+misunderstood a Supreme Court decision from the previous year, and
+misapplied it. Now it looks like that Appeals Court has finally
+changed its mind, and its come to the conclusion that it was mistaken
+all along, and it looks like this decision will get rid of all
+software patents, unless the Supreme Court reverses it. The Supreme
+Court is now considering it, and within less than a year we should
+find out whether we've won or lost.</dd>
<dt>Q.</dt>
-
<dd>Should that case be unsuccessful, is there any movement in the
States to take a legislated solution?</dd>
<dt>A.</dt>
-
<dd>Yes, and I been promoting this for about 19 years now. It's a
battle that we fight over and over in various different
countries.</dd>
<dt>Q.</dt>
-
<dd>Where in your universe do you put the in I4i case?</dd>
<dt>A.</dt>
-
<dd>I have no idea what that is.</dd>
<dt>Q.</dt>
-
<dd>It's where Microsoft has basically almost had to shut down on
selling Word, because they were found to have infringed a Canadian
patent.</dd>
<dt>A.</dt>
-
<dd>Oh, that one. That's just an example of how dangerous software
patents are to all software developers. I don't like what Microsoft
-does, but that's an issue that's irrelevant for this purpose. It's not
-good that somebody can sue a software developer and say 'I won't let
-you distribute such software'.</dd>
+does, but that's an issue that's irrelevant for this purpose. It's
+not good that somebody can sue a software developer and say “I
+won't let you distribute such software”.</dd>
<dt>Q.</dt>
-
<dd>Obviously we live in an imperfect world, and in some cases we run
into the issue of software patents. Do you think that we should allow
privileges for researchers to get around patents in the same way that
copyright law allows research on copyright material?</dd>
<dt>A.</dt>
-
<dd>No, it's a mistake to look for partial solutions, because we have
a much better chance of establishing a full solution. Everybody
involved in software development and distribution and use, when they
@@ -1147,43 +1120,37 @@
dangerous software patents are, they will get behind total rejection
of software patents, whereas an exception for some special case will
only win support from the people in that special case. These partial
-solutions are essentially distractions. People start by saying "Oh,
-I'm sure we can't really solve the problem, so I give up on that. Let
-me propose a partial solution." But these partial solutions don't make
-it safe to develop software.</dd>
+solutions are essentially distractions. People start by saying,
+“Oh, I'm sure we can't really solve the problem, so I give up on
+that. Let me propose a partial solution.” But these partial
+solutions don't make it safe to develop software.</dd>
<dt>Q.</dt>
-
<dd>You wouldn't, however, oppose a partial solution that's not
necessarily just directed at software patents, so you wouldn't oppose
experimental use, which may be a good solution for the pharmaceutical
patent.</dd>
<dt>A.</dt>
-
<dd>I wouldn't oppose that.</dd>
<dt>Q.</dt>
-
<dd>But what you're saying is that you don't think it's applicable to
software, just to clarify.</dd>
<dt>A.</dt>
-
<dd>Something that says only a few of us, or only certain activities,
or gets rid of half the software patents, that's analogous to say
-"well, maybe we could clear part of the minefield, or maybe we could
-destroy half the mines in the minefield, but that doesn't make it
-safe.</dd>
+“well, maybe we could clear part of the minefield, or maybe we
+could destroy half the mines in the minefield,” but that doesn't
+make it safe.</dd>
<dt>Q.</dt>
-
<dd>So you've been speaking the same thing all around the world. How
much uptake has there been? Have governments changed, or not adopted
software patents?</dd>
<dt>A.</dt>
-
<dd>Some have. In India a few years ago, there was an attempt to
change patent law to explicitly allow software patents and it was
dropped. A few years ago the US proposed a trade treaty, a free
@@ -1196,72 +1163,64 @@
country or other.</dd>
<dt>Q.</dt>
-
<dd>Is there any real hard data around what happens in economic terms
in the innovation communities in countries that have essentially no
software patents?</dd>
<dt>A.</dt>
-
-<dd>There isn't any. It's almost impossible to measure these
-things. Actually, I shouldn't say there isn't any. There is a
-little. It's very hard to measure the effect of the patent system,
-because you're comparing the real world with a counterfactual world,
-and there's no way to be sure what would happen. What I can say is
-before there were software patents, there was lots of software
-development, not as much as there is now, because of course there were
-nowhere near as many computer users. How many computer users were
-there in 1982, even in the US? It was a small fraction of the
-public. But there were software developers, they weren' saying we
-desperately want patents. They weren't getting sued for patent
-infringement after they developed their programs. But there is a bit
-of research that I saw that apparently software patents did not,
-essentially, resulted not in an increase in research, but a shift of
-funds from research into patenting.</dd>
+<dd>There isn't any. It's almost impossible to measure these things.
+Actually, I shouldn't say there isn't any. There is a little. It's
+very hard to measure the effect of the patent system, because you're
+comparing the real world with a counterfactual world, and there's no
+way to be sure what would happen. What I can say is before there were
+software patents, there was lots of software development, not as much
+as there is now, because of course there were nowhere near as many
+computer users. How many computer users were there in 1982, even in
+the US? It was a small fraction of the public. But there were
+software developers, they weren't saying we desperately want patents.
+They weren't getting sued for patent infringement after they developed
+their programs. But there is a bit of research that I saw that
+apparently software patents did not, essentially, resulted not in an
+increase in research, but a shift of funds from research into
+patenting.</dd>
<dt>Q.</dt>
-
<dd>Do you expect that there would be any interest in trade
secrets?</dd>
<dt>A.</dt>
-
<dd>No. Before there were software patents, a lot of software
developers kept the details of their programs secret, but they usually
wouldn't keep any of the general ideas secret, because that they
-realised that the big job in developing good software was not picking
+realized that the big job in developing good software was not picking
your general ideas, it was implementing a lot of ideas together. So
they would publish, they would let their employees publish in
scholarly journals any interesting new ideas that they'd had. So now,
they'll patent those new ideas. It has very little to do with
developing a useful program, and just letting people know some ideas
-doesn't give them a program. Besides, most of the ideas, the thousands
-of idea you've combined in your program, are known anyway.</dd>
+doesn't give them a program. Besides, most of the ideas, the
+thousands of idea you've combined in your program, are known
+anyway.</dd>
<dt>Q.</dt>
-
-<dd> To back that up, I was listening to an interview, one of the
+<dd>To back that up, I was listening to an interview, one of the
founders of PayPal was interviewed, and he said that he really felt
strongly that his success was 5% idea and 95% execution, and that
supports your point really well.</dd>
<dt>A.</dt>
-
<dd>I agree.</dd>
<dt>SF:</dt>
-
-<dd>Excellent. Richard has here stickers which I believe are free</dd>
+<dd>Excellent. Richard has here stickers which I believe are
+free.</dd>
<dt>RMS:</dt>
-
<dd>Gratis, and these are for sale.</dd>
<dt>SF:</dt>
-
-<dd>So you're welcome to come down. It's been a great debate - thank
-you Richard.</dd>
-
+<dd>So you're welcome to come down. It's been a great
+debate—thank you Richard.</dd>
</dl>
</div>
@@ -1270,12 +1229,11 @@
<p>
Please send FSF & GNU inquiries to
-<a href="mailto:address@hidden";><em>address@hidden</em></a>.
-There are also <a href="//contact">other ways to contact</a>
-the FSF.
+<a href="mailto:address@hidden";><address@hidden></a>. There are
+also <a href="/contact/">other ways to contact</a> the FSF.
<br />
Please send broken links and other corrections or suggestions to
-<a href="mailto:address@hidden";><em>address@hidden</em></a>.
+<a href="mailto:address@hidden";><address@hidden></a>.
</p>
<p>
@@ -1290,14 +1248,15 @@
<p>This work is licensed under the Creative Commons Attribution-No
Derivative Works 3.0 United States License. To view a copy of this
license,
-visit <a
href="http://creativecommons.org/licenses/by-nd/3.0/us/";>http://creativecommons.org/licenses/by-nd/3.0/us/</a>
-or send a letter to Creative Commons, 171 Second Street, Suite 300,
-San Francisco, California, 94105, USA.</p>
+visit <a href="http://creativecommons.org/licenses/by-nd/3.0/us/";>
+http://creativecommons.org/licenses/by-nd/3.0/us/</a> or send a letter
+to Creative Commons, 171 Second Street, Suite 300, San Francisco,
+California, 94105, USA.</p>
<p>
Updated:
<!-- timestamp start -->
-$Date: 2009/11/10 15:28:31 $
+$Date: 2009/11/13 08:03:19 $
<!-- timestamp end -->
</p>
@@ -1306,20 +1265,20 @@
<div id="translations">
<h4>Translations of this page</h4>
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+ - one of the lists under the section "Translations Underway"
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+ to mail.gnu.org:/com/mailer/aliases
+ Please also check you have the language code right; see:
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