Talk by Richard M. Stallman
The Danger of Software Patents
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They knew that publishing the ideas would get them credit from the community and meanwhile anybody else who wanted to compete with them would still have to write a program, which is the big job. So they typically kept the details of the program secret, of course some of us think that it is wrong, but that is a different issue they kept the details of the program secret and they publish the ideas and meanwhile the software development because software development is going on that provided the field with a steady stream of ideas so ideas were not the limiting factor.
The Limiting factor was the job of writing programs that would work and that people would like using. So, in effect, applying the patent system to software focuses on facilitating a thing which is not the limiting factor while causing trouble for the thing which is the limiting factor. You see the software patents encourage somebody to have an idea but at the same time they encourage people to restrict its use, so in fact we are actually worse off now in terms of having ideas we could use, because in the past people have the ideas and publish them and we could use them and now they have the ideas and patented them and we can't use them for twenty years.
In the mean time, the real limiting factor - which is developing the programs - this is hampered by software patents because of other dangers I explained to you in the first half of this talk. So the result is that while the system is supposed to be promoting progress in software actually it is so screwed up its just obstructing progress.
Today we have some economic research showing Mathematically how this can happen. You can find it in www.researchoninnovation.org and I am not completely sure of the name of the paper, but its one that shows that in a field where incremental innovation is typical. Having a patent system can result in slower progress. In other words the system produces counter intuitive results that are the opposite of what it was intended to do. This backs up the intuitive conclusion of every programmer who sees that software patents are absurd.
So, what can a country do to avoid this problem ? Well, there are two approaches, one is to address the problem at the issue of granting patents, and the other is to approach it at the point where the patents are being enforced. Doing this at the stage of granting patents is not quite as easy as you might think, now I have been talking about software patents but strictly speaking you can't classify patents into hardware patents and software patents because one patent might cover both hardware and software so in fact my definition of a software patent is a patent that can restrict software development.
And if you look at many software patents you can often find that the system may describe has a large part of the computer itself as a part of the description of what's going on, that's a great way of making the whole thing seem complicated when it is really trivial. So its the way they can get the patent office to decide it is unobvious. But there is a different criterion that can be used, a slightly different place to draw the line that still does a reasonable job and that is between processes that transforms matter in a specific way and processes where the result is just calculation and display of information or a combination of data processing and display steps where others are put it as mental steps being carried out by equipment.
There are various ways of formulating this, but more or less equivalent. Now this is not exactly the same as prohibiting software patents, because in some cases computers are used as a part of specific physical equipment to make it do a specific thing. And software patents might be allowed if they are part of a specific physical activity. But that's not really a disaster, after all once people are involved in a specific physical activity or a specific physical product, they are bringing into their home business all those complexities of dealing with matter. So its more like those other fields of engineering, may be its okay to have patents on that narrow kind of software.
As long as we can keep the core areas of the software, the purely software activities safe from patents we have solved the bulk of the problem. So that is a feasible approach and that's what people are working towards in Europe. However that is not going to be any use in the United States because United States already has tens of thousands and probably hundreds of thousands of software patents. Any change in the criterion for issuing patents does not help at all with the patents that already exists.
So what I propose to the United States is to change the criteria for applying patents to say that purely software systems running on general purpose computing hardware are immune from patents.They by definition cannot infringe a patent and this way patents can still be granted exactly the way they are now and they can still in the formal sense cover both hardware implementations and software implementations as they do now. But software would be safe.
That's the solution I propose to the US, but it could be used in other countries as well. Now, one of the tremendous dangers facing most countries today is the World Trade Organisation, which sets up a system of corporate regulated trade - not free trade as its proponents like to call it, but corporate regulated trade. It replaces regulation of trade by governments that are somewhat democratic and might listen to the interest of their citizens with regulation of trade by businesses which don't pretend to listen to the citizens. So it is fundamentally antidemocratic and ought to be abolished.
But it is crucial to note that the part of the GATT agreement which deals with patents does not require software patents. Many experts who have studied this in Europe makes this claim and the reason is that they interpret technical affect as there is a specific physical consequences for physical system going on. And the software vector doesn't do that, doesn't have to be, in the domains that the patents can cover. So at least you don't have to worry about the Word Trade Organisation causing problems here despite the tremendous problems they cause in other areas of life.
Preventing India from software patents here will be up to you - to the citizens of India. I am a foreigner, I have no influence except when I can convince other people through the logic of what I say. There is a chance that you can do this. When US started to have software patents the public policy question was not considered at all. Nobody even asked whether it was a good idea to have software patents. The Supreme Court made a decision which was then twisted around by an appeals court and ever since then there was software patents.
But when Europe started to consider officially authorising software patents a few years ago, public opposition started to rise and became so strong that the politicians and the parties began paying attention to it. And started saying that they were against it. In fact two attempts to authorise software patents have been blocked already in Europe. The French Minister of Industry says that the software patents would be a disaster and under no circumstances should they be allowed in France. Over the German political parties have taken a stand against the software patents.
The battle is not yet over, you know, we have not conclusively blocked software patents in Europe because the multinational companies and their servant, the United States government, is lobbying very hard and they have ignorance on their side it is so easy for somebody with a naive near-liberal view to be persuaded that new kind of monopoly has to be good.
You have to look at the details of how software patents affect software development to see that they cause problem. You have to study that economic research in its Mathematics in order to see why you shouldn't assume that patents always promote progress. So it is easy for IBM to centre someone and say you should really adopt software patents, they are great for programming and look US is ahead in when US has software patents if you have software patents too you might catch up. You can get more dominant and - when US was ahead in computers before it had software patents, it can't be because of software patents. It is important to understand that each country has its own patent systems and its own patent laws and what you do in a certain country under the jurisdiction of that country's patent law. So the result is that if the US has software patents the US becomes a sort of battleground where anybody using computer might get sued.
If India avoid software patents then India is not a battleground, and computer users in India do not face this danger of getting sued. So it turns out that each country will issue patents to foreigners just as to its own citizens. So in fact in a place which has this idea of software patents foreigners can own those patents there are lots of non-US companies that own US software patents so they all welcome to get involved in the fighting in the US. Of course is we Americans to suffer become the victims of this. Meanwhile in India if there are no software patents that means Indian companies and foreign companies are prevented from coming to India and attacking people with software patents.
So, yes it is important that each countries has its own patents for that makes big difference but you can't understand what difference it makes. Having software patents in a certain country is not an advantage for developers in that country. It is a problem for anybody distributing and using software in that country. Now, if you in India are developing a program for use in US you may face the problem or your client may face the problem of US software patents. At least probably you can get sued here.
The client who commissioned the program and tried to use it might get sued in the US and indeed you will have to deal with the problem, the US is problem when you try doing business in the US. But at least you will be safe here you know at least it is a big difference between your client got sued because your client told you to make a product and that product is patented versus you get sued for making that product.
If there are software patents in India you will get sued. Wheas in the current situation at least you can say to the client "well, we did our job you told us to make this and we made it and so, I am sorry this happened to you but this is not our fault." If there are software patents in India you get sued yourself and there is nothing you can say about that.
So the ultimate conclusion is that software patents tie all software developers, all computer users and essentially all businesses in new kind of bureaucracy which serves no beneficial social purpose. So that is a bad policy and it should be avoided. Businesses don't like bureaucracy. If businesses knew that they were threatened with a new kind of bureaucracy they would have opposed software patents very strongly. But most of them aren't aware of this.
In the US software patents have led directly to business method patents. What does this mean? A business method is basically haw you make decisions about what to do in the business. And in the past these decisions were made by humans but now sometimes they are made by computers and that means they are carried out by software and that means decision policies can be patented. So software patents implied business method patents and business procedure patents. So the result is that any business could find itself, you know, once they decide "we're going to automate the way we carry out our procedures" but now they can get sued with software patents. So if the businesses only knew they would be organising through things like the chamber of commerce to demand opposition to software patents.
But most of them don't know and therefore it is going to be your job to inform them. Make sure that they understand the danger that they are facing. And then India may be able with the help from other countries like France and Germany to reject software patents. It is important for the people in the Indian Government to make contact with officials in European countries so that this battle against software patents doesn't have to be fought at one country at a time, countries can work together to adopt an intelligent policy. May be there should be a no software patents treaty that various countries can sign and promise each other aid when they are threatened by economic pressure from the United States as part of its economic imperialism.
Because United States likes to do that, you know, one of the provisions in the GATT agreement is that the countries have the right to make compulsory licenses for making medicines to address a public health crisis. And the South African Government proposed to do this for medicine against AIDS. South Africa has a very bad problem with AIDS the figures I heard was that a quarter of the adult population is infected. And of course, most of them can't afford to buy these medicines at the prices charged by the US companies.
So the South African Government was going to issue compulsory license which even under GATT is allowed to do, but US Government threatened economic sanctions. Vice President Gore was directly involved with this and then he'd be facing the presidential election he realised that this was going to look bad and so he dropped out of the effort. But this kind of the thing is what the US Government does all the time with regard to patents and copyrights. They only mind if people get patented to death. So it is important for countries to work together against this.
Please talk with all executives of businesses - any kind of businesses - about this issue. Make sure that they understand the extend of the problem they face and they think of going to business organisations to have them lobby against software patents.
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