Free Software, Free Society: selected essays of Richard M. Stallman. 2nd edition.

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 Free Software, Free Society: Selected Essays of Richard M. Stallman, 2nd ed. (Boston: GNU Press, 2010).

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 Economist once referred to the patent system as “a time-consuming lottery.” 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. 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.