saying that Linux was 0.25 percent of the whole system. So by multiplying 300 by 400 we can estimate the number of patents that would prohibit something in the whole system as being around 100,000. This is a very rough estimate only, and no more accurate information is available, since trying to figure it out would be a gigantic task.
Now this lawyer did not publish the list of patents, because that would have endangered the developers of Linux the kernel, putting them in a position where the penalties if they were sued would be greater. He didn’t want to hurt them; he wanted to demonstrate how bad this problem is, of patent gridlock.
Programmers can understand this immediately, but politicians usually don’t know much about programming; they usually imagine that patents are basically much like copyrights, only somehow stronger. They imagine that since software developers are not endangered by the copyrights on their work, that they won’t be endangered by the patents on their work either. They imagine that, since when you write a program you have the copyright, [therefore likewise] if you write a program you have the patents also. This is false—so how do we give them a clue what patents would really do? What they really do in countries like the US?
I find it’s useful to make an analogy between software and symphonies. Here’s why it’s a good analogy.
A program or symphony combines many ideas. A symphony combines many musical ideas. But you can’t just pick a bunch of ideas and say “Here’s my combination of ideas, do you like it?” Because in order to make them work you have to implement them all. You can’t just pick musical ideas and list them and say, “Hey, how do you like this combination?” You can’t hear that [list]. You have to write notes which implement all these ideas together.
The hard task, the thing most of us wouldn’t be any good at, is writing all these notes to make the whole thing sound good. Sure, lots of us could pick musical ideas out of a list, but we wouldn’t know how to write a good- sounding symphony to implement those ideas. Only some of us have that talent. That’s the thing that limits you. I could probably invent a few musical ideas, but I wouldn’t know how to use them to any effect.
So imagine that it’s the 1700s, and the governments of Europe decide that they want to promote the progress of symphonic music by establishing a system of musical idea patents, so that any musical idea described in words could be patented.
For instance, using a particular sequence of notes as a motif could be patented, or a chord progression could be patented, or a rhythmic pattern could be patented, or using certain instruments by themselves could be patented, or a format of repetitions in a movement could be patented. Any sort of musical idea that could be described in words would have been patentable.
Now imagine that it’s 1800 and you’re Beethoven, and you want to write a symphony. You’re going to find it’s much harder to write a symphony you don’t get sued for than to write one that sounds good, because you have to thread your way around all the patents that exist. If you complained about this, the patent holders would say, “Oh, Beethoven, you’re just jealous because we had these ideas first. Why don’t you go and think of some ideas of your own?”
Now Beethoven had ideas of his own. The reason he’s considered a great composer is because of all of the new ideas that he had, and he actually used. And he knew how to use them in such a way that they would work, which was to combine them with lots of well-known ideas. He could put a few new ideas into a composition together with a lot of old and uncontroversial ideas. And the result was a piece that was controversial, but not so much so that people couldn’t get used to it.
To us, Beethoven’s music doesn’t sound controversial; I’m told it was, when it was new. But because he combined his new ideas with a lot of known ideas, he was able to give people a chance to stretch a certain amount. And they could, which is why to us those ideas sound just fine. But nobody, not even a Beethoven, is such a genius that he could reinvent music from zero, not using any of the well-known ideas, and make something that people would want to listen to. And nobody is such a genius he could reinvent computing from zero, not using any of the well-known ideas, and make something that people want to use.
When the technological context changes so frequently, you end up with a situation where what was done 20 years ago is totally inadequate. Twenty years ago there was no World Wide Web. So, sure, people did a lot of things with computers back then, but what they want to do today are things that work with the World Wide Web. And you can’t do that using only the ideas that were known 20 years ago. And I presume that the technological context will continue to change, creating fresh opportunities for somebody to get patents that give the shaft to the whole field.
Big companies can even do this themselves. For instance, a few years ago Microsoft decided to make a phony open standard for documents and to get it approved as a standard by corrupting the International Standards Organization, which they did. But they designed it using something that Microsoft had patented. Microsoft is big enough that it can start with a patent, design a format or protocol to use that patented idea (whether it’s helpful or not), in such a way that there’s no way to be compatible unless you use that same idea too. And then Microsoft can make that a de facto standard with or without help from corrupted standards bodies. Just by its weight it can push people into using that format, and that basically means that they get a stranglehold over the whole world. So we need to show the politicians what’s really going on here. We need to show them why this is bad.
Now I’ve heard it said that the reason New Zealand is considering software patents is that one large company wants to be given some monopolies. To restrict everyone in the country so that one company will make more money is the absolute opposite of statesmanship.
Copyright c 2009 Richard Stallman
This transcript was originally published on http://gnu.org, in 2009. This version is part of
This chapter is licensed under the Creative Commons Attribution-NoDerivs 3.0 United States License. To view a copy of this license, visit http://creativecommons.org/licenses/by-nd/3.0/us/ or send a letter to Creative Commons, 171 Second Street, Suite 300, San Francisco, California 94105, USA.
Chapter 26.
Microsoft’s New Monopoly
This article was written in July 2005. Microsoft adopted a different policy in 2006, so the specific policies described below and the specific criticisms of them are only of historical significance. The overall problem remains, however: Microsoft’s cunningly worded new policy (see http://grokdoc.net/index.php/EOOXML_objections#Patent_right s_to_implement_the_ Ecma_376_specification_have_not_been_granted) does not give anyone clear permission to implement OOXML.
European legislators who endorse software patents frequently claim that those wouldn’t affect free software (or “open source”). Microsoft’s lawyers are determined to prove they are mistaken.
Leaked internal documents in 1998 said that Microsoft considered the free software GNU/Linux operating system (referred to therein as “Linux”) as the principal competitor to Windows, and spoke of using patents and secret file formats to hold us back.
Because Microsoft has so much market power, it can often impose new standards at will. It need only patent some minor idea, design a file format, programming language, or communication protocol based on it, and then pressure users to adopt it. Then we in the free software community will be forbidden to provide software that
