www/philosophy philosophy.html danger-of-softwa...

[Rob Myers]

CVSROOT:        /web/www
Module name:    www
Changes by:     Rob Myers <robmyers>    09/11/05 22:51:37

Modified files:
        philosophy     : philosophy.html 
Added files:
        philosophy     : danger-of-software-patents.html 

Log message:
        Added new rms talk , RT 501434

CVSWeb URLs:
http://web.cvs.savannah.gnu.org/viewcvs/www/philosophy/philosophy.html?cvsroot=www&r1=1.308&r2=1.309
http://web.cvs.savannah.gnu.org/viewcvs/www/philosophy/danger-of-software-patents.html?cvsroot=www&rev=1.1

Patches:
Index: philosophy.html
===================================================================
RCS file: /web/www/www/philosophy/philosophy.html,v
retrieving revision 1.308
retrieving revision 1.309
diff -u -b -r1.308 -r1.309
--- philosophy.html     17 Oct 2009 15:21:23 -0000      1.308
+++ philosophy.html     5 Nov 2009 22:51:33 -0000       1.309
@@ -11,7 +11,10 @@
 free software movement, which is the motivation for our development of
 the free software operating system GNU.</p>
 
-<p style="text-align: center;"><span style="background-color: yellow; color: 
red; padding: 8px;">NEW</span> &mdash; <a 
href="/philosophy/digital-inclusion-in-freedom.html">Is Digital Inclusion A 
Good Thing? How Can We Make Sure It Is?</a></p>
+<p style="text-align: center;"><span style="background-color: yellow; color: 
red; padding: 8px;">NEW</span> &mdash; 
+  <a href="/philosophy/danger-of-software-patents.html">The Danger of
+    Software Patents</a>
+</p>
 
 <p>
 <!-- please leave both these ID attributes here. ... -->
@@ -245,6 +248,10 @@
 
 <h4>Patents</h4>
 <ul>
+  <li><a href="/philosophy/danger-of-software-patents.html">The Danger 
+  of Software Patents</a>, transcript of a talk by 
+  <a href="http://www.stallman.org";>Richard Stallman</a>.</li>
+
   <li><a href="/philosophy/w3c-patent.html">FSF's Position on W3
   Consortium &ldquo;Royalty-Free&rdquo; Patent Policy</a>
   rewritten</li>
@@ -459,7 +466,7 @@
 <p>
 Updated:
 <!-- timestamp start -->
-$Date: 2009/10/17 15:21:23 $
+$Date: 2009/11/05 22:51:33 $
 <!-- timestamp end -->
 </p>
 </div>

Index: danger-of-software-patents.html
===================================================================
RCS file: danger-of-software-patents.html
diff -N danger-of-software-patents.html
--- /dev/null   1 Jan 1970 00:00:00 -0000
+++ danger-of-software-patents.html     5 Nov 2009 22:51:33 -0000       1.1
@@ -0,0 +1,274 @@
+<!--#include virtual="/server/header.html" -->
+<title>The Danger of Software Patents - GNU Project - Free Software 
Foundation</title>
+<!--#include virtual="/server/banner.html" -->
+
+<h2>The Danger of Software Patents</h2>
+<p>by <a href="http://www.stallman.org/";>Richard Stallman</a></p>
+<p>This is the transcript of a talk presented by Richard M. Stallman on 8 
October 2009 at Victoria University of Wellington.</b>
+</p><p>
+<b>SF:</b> 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><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 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><p>
+<b>RMS:</b> Oh, you shouldn't recommend YouTube, because they distribute in a 
patented video format.
+</p><p>
+<b>SF:</b> Good point. I only recommend it for the point that I thought do you 
say G N U or GNU? 
+</p><p>
+<b>RMS:</b> Wikipedia says that.
+</p><p>
+<b>SF:</b> 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, 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.
+</p><p>
+<b>RMS:</b> 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 killercoke.org, 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><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><p>
+Now, to understand this issue, the first thing you need to realise 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><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 can't understand. It's a struggle to figure out what 
those prohibitions actually mean, and they may go on for many pages of fine 
print. So the patent typically lasts for 20 years, which is a fairly long time 
in our field. Twenty years ago there was no World Wide Web, a tremendous amount 
of the use of computers goes on in an area which wasn't even possible to 
propose 20 years ago. So of course everything that people do on it is something 
that's new since 20 years ago. It 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><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><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><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 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 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 might try to do is find 
out all the ideas that are patented that might be in your program. Now you 
can't do that actually, because patent applications are kept secret for at 
least 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><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 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><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 there are too many of them. In the US I 
believe there are hundreds of 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><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>
+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 couldn't manage to keep it all in my mind at once, no 
matter how hard I tried. And Heckel couldn't follow it either, because when he 
saw HyperCard, all he noticed was it was nothing like his program, it didn't 
occur to him that the way his patent was written it might prohibit Hypercard, 
but his lawyer had that idea, so he threatened Apple, and then he threatened 
Apple's customers, and eventually Apple made a settlement with him which is 
secret, so we don't know who really won. And this is just an illustration of 
how hard it is for anybody to understand what a patent does or doesn't 
prohibit. In fact, I once gave this speech and Heckel was in the audience, and 
at this point he jumped up and said that's not true, I just didn't know the 
scope of my protection. And I said Yeah, that's what I said, at which point he 
sat down and that was the end of my experience being heckled by Heckel. If I 
had said no, he probably would have found a way to argue with me. Anyway, 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><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><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 something having to do with object-oriented 
programming. And Sun didn't think it was infringing that patent. But the court 
decided it was, and when other people look at that patent they haven't the 
faintest idea whether that decision was right or not. No one can tell what that 
patent does or doesn't cover. But Sun had to pay hundreds of millions of 
dollars because of violating a completely incomprehensible law. 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 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><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><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 facility, all they had to do was to 
install multiple games and it would be possible to display multiple game 
sessions at once. This is so trivial and uninteresting that nobody would have 
bothered to publish an article about doing it, no one would have been 
interested in publishing an article about doing it, but it was worth patenting 
it. If it had occurred to you that you could get a monopoly on this trivial 
thing, 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><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 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><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 cross-licensing. What this means is since IBM, with so many 
patents, can make almost everybody give them a cross-license, IBM avoids almost 
all the grief that the patent system would have inflicted on anybody else. So 
that's why IBM wants software patents. That's why the megacorporations in 
general want software patents, because they know that by cross-licensing, they 
will for a sort-of exclusive club on top of a mountain peak, and all the rest 
of us will be down here, and there's no way we can get up there. You know, if 
you're a genius, you might start up a small company and get some patents, but 
you'll never get into IBM's league, no matter what you do. 
+</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 cross-licensing, but it just 
doesn't work well. It's not an effective strategy if you've got a small number 
of patents. Suppose you've got three patents. One points there, one points 
there, and one points there, and somebody over there points a patent at you. 
Well, your three patents don't help you at all, because none of them points at 
him. On the other hand, sooner or later, somebody in the company is going to 
notice that this patent is actually pointing at some people, and 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><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 
business will almost certainly fail and then he will starve. Well, 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 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 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><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><p>
+The patent might protect him from competition from your 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><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><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 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><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><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, 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><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 pharmaceuticals. A few decades ago, there 
really was one patent per pharmaceutical, at least at any time, because the 
patent covered the entire chemical formula of that one particular substance. 
Back then, if you developed a new drug, you could be sure it wasn't already 
patented by somebody else and you could get the one patent on that drug. But 
that's not how it works now. 
+</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 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 is so limited that nobody knows how to combine so 
many ideas to make something that's useful in medicine. If you can combine a 
couple of them you're doing pretty well at our level of knowledge. But other 
fields involve combining more ideas to make one thing. At the other end of the 
spectrum is software, where we can combine more ideas into one usable design 
than anybody else, because our field is basically easier than all other fields. 
I'm presuming that the intelligence of people in our field is the same as that 
of people in physical engineering. It's not that we're fundamentally better 
than they are, it's that our field is fundamentally easier, because we're 
working with mathematics. A program is made out of mathematical components, 
which have a definition, whereas physical objects don't have a definition. The 
matter does what it does, so through the perversity of matter, your design may 
not work the way it should have worked. And that's just tough. You can't say 
that the matter has a bug in it, and the physical universe should get fixed. 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 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 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 master CD and write it and send it off to a factory 
and they'll duplicate whatever I send them. I don't have to design a different 
factory for each thing I want to duplicate. Very often with physical 
engineering you have to do that, you have to design products for 
manufacturability. Designing the factory may even be a bigger job than 
designing the product, and then you may have to spend millions of dollars to 
build the factory. So with all of this trouble, you're not going to be able to 
put together so many different ideas in one product and have it work. A 
physical design with a million 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 people in any other 
field who are being held back by the perversity of matter. 
+</p><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 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><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><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 progression could be patented, or a rhythmic pattern 
could be patented, or using certain instruments by themselves could be 
patented, or a format of repetitions in a movement could be patented, any sort 
of musical idea that could be described in words would have been patentable. 
Now imagine that it's 1800 and you're Beethoven, and you want to write a 
symphony. You're going to find it's much harder to write a symphony you don't 
get sued for than to write one that sounds good, because you have to thread 
your way around all the patents that 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 great 
composer is because of all of the new ideas that he had, and he actually used, 
and he knew how to use them in such a way that they would work, which was to 
combine them with lots of well-known ideas. He could put a few new ideas into a 
composition together with a lot of old and uncontroversial ideas, and the 
result was a piece that was controversial, but not so much so that people 
couldn't get used to it. To us, Beethoven's music doesn't sound controversial, 
I'm told it was, when it was new. But because he combined his new ideas with a 
lot of known ideas, he was able to give people a chance to stretch a certain 
amount, and they could, which is why to us those ideas sound just fine. But 
nobody, not even a Beethoven, is such a genius that he could reinvent music 
from zero, not using any of the well-known ideas and make something that people 
would want to listen to. And nobody is such a genius he could reinvent 
computing from zero, not using any of the well-known ideas, and make something 
that people want to use.
+</p><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, 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><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><p>
+So, at this point, I'd like to ask for questions.
+</p><p>
+<b>Q.</b> What is the alternative?
+</p><p>
+<b>A.</b> 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 ways, and they didn't have to 
worry about getting sued by patent holders for doing it, so they were safe. 
Software patents don't solve a real problem, so we don't need to ask what other 
solution is there.
+</p><p>
+<b>Q.</b> How do the developers get rewarded? 
+</p><p>
+<b>A.</b> 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.
+</p><p>
+<b>Q.</b> How do you prevent plagiarism and still 
+</p><p>
+<b>A.</b> 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 concerned with the 
text of any particular work. They simply have nothing to do with this. If you 
write a work and this work embodies some ideas, which it always does, there's 
no reason to think that the patents covering those ideas would belong to you. 
They're more likely to belong to lots of others, and half of them to the 
megacorporations, 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 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 they don't. If you write some code, the copyright on 
that code would belong to you, but if your code implements ideas, if some of 
these ideas are patented, those patents belong to others who could then sue 
you. You don't have to be afraid with copyright that when you write code 
yourself, that somebody else already has a copyright on it and can sue you, 
because copyright only restricts copying. In fact, even if you write something 
which is identical to what somebody else wrote, if you can prove you didn't 
copy it, that's a defense under copyright law, because copyright law is only 
concerned with copying. But 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 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.
+</p><p>
+<b>Q.</b> Don't get me wrong. I'm on your side.
+</p><p>
+<b>A.</b> OK, but still you've got a wrong picture. I'm not blaming you for 
it, because you've just been misinformed.
+</p><p>
+<b>Q.</b> If I'm writing software for commercial purposes, do I get good 
protection by treating it as a black box and keeping it secret?
+</p><p>
+<b>A.</b> I don't want to discuss that question because I'm not in favour of 
it, I think it's unethical to do that, but that's an unrelated issue.
+</p><p>
+<b>Q.</b> I understand that.
+</p><p>
+<b>A.</b> 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.
+</p><p>
+<b>Q.</b> 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 that they propose 
pretty actively is that ideas that they have funded should be secured if 
possible by patents.
+</p><p>
+<b>A.</b> 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.
+</p><p>
+<b>Q.</b> 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.
+</p><p>
+<b>A.</b> Software patents don't help anybody make money out of software. They 
mean that you're in danger of getting sued when you try.
+</p><p>
+<b>Q.</b> Which makes it difficult for New Zealand as a country to build an 
economic base using software as part of that.
+</p><p>
+<b>A.</b> 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.
+</p><p>
+<b>Q.</b> So New Zealand, in terms of its economic development, it would be 
better protected by having no software patents.
+</p><p>
+<b>A.</b> 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.
+</p><p>
+<b>Q.</b> Since the Hughes Aircraft case, I think it was in the 1990s
+</p><p>
+<b>A.</b> I don't know about that case.
+</p><p>
+<b>Q.</b> 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.
+</p><p>
+<b>A.</b> 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 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.
+</p><p>
+<b>Q.</b> Should that case be unsuccessful, is there any movement in the 
States to take a legislated solution?
+</p><p>
+<b>A.</b> 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.
+</p><p>
+<b>Q.</b> Where in your universe do you put the in I4i case?
+</p><p>
+<b>A.</b> I have no idea what that is.
+</p><p>
+<b>Q.</b> It's where Microsoft has basically almost had to shut down on 
selling Word, because they were found to have infringed a Canadian patent.
+</p><p>
+<b>A.</b> 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'.
+</p><p>
+<b>Q.</b> 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?
+</p><p>
+<b>A.</b> 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 see, except the ones 
in the megacorporations, when they see how 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.
+</p><p>
+<b>Q.</b> 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.
+</p><p>
+<b>A.</b> I wouldn't oppose that.
+</p><p>
+<b>Q.</b> But what you're saying is that you don't think it's applicable to 
software, just to clarify.
+</p><p>
+<b>A.</b> 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.
+</p><p>
+<b>Q.</b> 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?
+</p><p>
+<b>A.</b> 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 exploitation treaty, with Latin 
America, and it was blocked by the president of Brazil, who said no to software 
patents and another nasty thing relating to computers, and that killed the 
whole treaty. That's apparently the whole thing that the US wanted to impose on 
the rest of the continent. But these things don't stay dead. There are 
companies that have full-time staff looking for some way they can subvert some 
country or other.
+</p><p>
+<b>Q.</b> Is there any real hard data around what happens in economic terms in 
the innovation communities in countries that have essentially no software 
patents?
+</p><p>
+<b>A.</b> 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.
+</p><p>
+<b>Q.</b> Do you expect that there would be any interest in trade secrets?
+</p><p>
+<b>A.</b> 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 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.
+</p><p>
+<b>Q.</b> 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.
+</p><p>
+<b>A.</b> I agree.
+</p><p>
+<b>SF:</b> Excellent. Richard has here stickers which I believe are free
+</p><p>
+<b>RMS:</b> Gratis, and these are for sale.
+</p><p>
+<b>SF:</b> so you're welcome to come down. It's been a great debate - thank 
you Richard.
+</p>
+
+
+
+</div>
+
+<!--#include virtual="/server/footer.html" -->
+<div id="footer">
+
+<p>
+Please send FSF &amp; 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.
+<br />
+Please send broken links and other corrections or suggestions to
+<a href="mailto:address@hidden";><em>address@hidden</em></a>.
+</p>
+
+<p>
+Please see the 
+<a href="/server/standards/README.translations.html">Translations
+README</a> for information on coordinating and submitting
+translations of this article.
+</p>
+
+<p>Copyright &copy; 2009 Richard Stallman</p>
+
+<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>
+
+<p>
+Updated:
+<!-- timestamp start -->
+$Date: 2009/11/05 22:51:33 $
+<!-- timestamp end -->
+</p>
+</div>
+
+<div id="translations">
+<h4>Translations of this page</h4>
+
+<!-- Please keep this list alphabetical by language code. -->
+<!-- Comment what the language is for each type, i.e. de is German. -->
+<!-- Write the language name in its own language (Deutsch) in the text. -->
+<!-- If you add a new language here, please -->
+<!-- advise address@hidden and add it to -->
+<!--  - /home/www/html/server/standards/README.translations.html -->
+<!--  - one of the lists under the section "Translations Underway" -->
+<!--  - if there is a translation team, you also have to add an alias -->
+<!--  to mail.gnu.org:/com/mailer/aliases -->
+<!-- Please also check you have the language code right; see: -->
+<!-- http://www.loc.gov/standards/iso639-2/php/code_list.php -->
+<!-- If the 2-letter ISO 639-1 code is not available, -->
+<!-- use the 3-letter ISO 639-2. -->
+<!-- Please use W3C normative character entities. -->
+
+<ul class="translations-list">
+<!-- English -->
+<li><a 
href="/philosophy/danger-of-software-patents.html">English</a>&nbsp;[en]</li>
+</ul>
+</div>
+</div>
+</body>
+</html>