get him sued for using the character of Jean Valjean, because he could not even have considered writing a novel of this kind.
This analogy can help nonprogrammers see what software patents do. Software patents cover features, such as defining abbreviations in a word processor, or natural order recalculation in a spreadsheet. Patents cover algorithms that programs need to use. Patents cover aspects of file formats, such as Microsoft’s OOXML format. MPEG 2 video format is covered by 39 different US patents.
Just as one novel could run afoul of many different literary patents at once, one program can be prohibited by many different patents at once. It is so much work to identify all the patents that appear to apply to a large program that only one such study has been done. A 2004 study of Linux, the kernel of the GNU/Linux operating system, found 283 different US software patents that seemed to cover it. That is to say, each of these 283 different patents forbids some computational process found somewhere in the thousands of pages of source code of Linux. At the time, Linux was around 1 percent of the whole GNU/Linux system. How many patents might there be that a distributor of the whole system could be sued under?
The way to prevent software patents from bollixing software development is simple: don’t authorize them. This ought to be easy, since most patent laws have provisions against software patents. They typically say that “software per se” cannot be patented. But patent offices around the world are trying to twist the words and issuing patents on the ideas implemented in programs. Unless this is blocked, the result will be to put all software developers in danger.
Copyright c 2005, 2007, 2008, 2009 Richard Stallman
This essay was originally published on http://guardian.co.uk, on 23 June 2005. It was then titled “Patent Absurdity” and focused on the proposed European software patent directive. This version is part of
Verbatim copying and distribution of this entire chapter are permitted worldwide, without royalty, in any medium, provided this notice is preserved.
Chapter 25.
The Danger of Software Patents
This is an unedited transcript of the talk presented by Richard Stallman on 8 October 2009 at Victoria University of Wellington, in Wellington, New Zealand.
I’m most known for starting the free software movement and leading development of the GNU operating system—although most of the people who use the system mistakenly believe it’s Linux and think it was started by somebody else a decade later. But I’m not going to be speaking about any of that today. I’m here to talk about a legal danger to all software developers, distributors, and users: the danger of patents—on computational ideas, computational techniques, an idea for something you can do on a computer.
Now, to understand this issue, the first thing you need to realize is that patent law has nothing to do with copyright law—they’re totally different. Whatever you learn about one of them, you can be sure it doesn’t apply to the other.
So, for example, any time a person makes a statement about “intellectual property,” that’s spreading confusion, because it’s lumping together not only these two laws but also at least a dozen others. They’re all different, and the result is any statement which purports to be about “intellectual property” is pure confusion— either the person making the statement is confused, or the person is trying to confuse others. But either way, whether it’s accidental or malicious, it’s confusion.
Protect yourself from this confusion by rejecting any statement which makes use of that term. The only way to make thoughtful comments and think clear thoughts about any one of these laws is to distinguish it first from all the others, and talk or think about one particular law, so that we can understand what it actually does and then form conclusions about it. So I’ll be talking about patent law, and what happens in those countries which have allowed patent law to restrict software.
So, what does a patent do? A patent is an explicit, government-issued monopoly on using a certain idea. In the patent there’s a part called the claims, which describe exactly what you’re not allowed to do (although they’re written in a way you probably can’t understand). It’s a struggle to figure out what those prohibitions actually mean, and they may go on for many pages of fine print.
So the patent typically lasts for 20 years, which is a fairly long time in our field. Twenty years ago there was no World Wide Web—a tremendous amount of the use of computers goes on in an area which wasn’t even possible to propose 20 years ago. So of course everything that people do on it is something that’s new since 20 years ago—at least in some aspect it is new. So if patents had been applied for we’d be prohibited from doing all of it, and we may be prohibited from doing all of it in countries that have been foolish enough to have such a policy.
Most of the time, when people describe the function of the patent system, they have a vested interest in the system. They may be patent lawyers, or they may work in the Patent Office, or they may be in the patent office of a megacorporation, so they want you to like the system.
The
It’s the same way for the publicity for the patent system: they talk about what it’s like to walk down the street with a patent in your pocket—or first of all, what it’s like to get a patent, then what it’s like to have a patent in your pocket, and every so often you can pull it out and point it at somebody and say, “Give me your money.”
To compensate for their bias, I’m going to describe it from the other side, the victim side—what it’s like for people who want to develop or distribute or run software. You have to worry that any day someone might walk up to you and point a patent at you and say, “Give me your money.”
If you want to develop software in a country that allows software patents, and you want to work with patent law, what will you have to do?
You could try to make a list of all the ideas that one might be able to find in the program that you’re about to write, aside from the fact that you don’t know that when you start writing the program. [But] even after you finish writing the program you wouldn’t be able to make such a list.
The reason is… in the process you conceived of it in one particular way—you’ve got a mental structure to apply to your design. And because of that, it will block you from seeing other structures that somebody might use to understand the same program—because you’re not coming to it fresh; you already designed it with one structure in mind. Someone else who sees it for the first time might see a different structure, which involves different ideas, and it would be hard for you to see what those other ideas are. But nonetheless they’re implemented in your program, and those patents could prohibit your program, if those ideas are patented.
For instance, suppose there were graphical-idea patents and you wanted to draw a square. Well, you would realize that if there was a patent on a bottom edge, it would prohibit your square. You could put “bottom edge” on the list of all ideas implemented in your drawing. But you might not realize that somebody else with a patent on bottom corners could sue you easily also, because he could take your drawing and turn it by 45 degrees. And now your square is like this, and it has a bottom corner.
So you couldn’t make a list of all the ideas which, if patented, could prohibit your program.
What you might try to do is find out all the ideas that are patented that might be in your program. Now
