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Richard M. Stallman: The Dangers of Software Patents (2004-05-24)

Transcript by Irish Free Software Organisation (IFSO). A video of this event is available at: http://www.archive.org/details/ifso-stallman

Transcript of a talk presented 2004-05-24 at the University of Dublin, Trinity College, organised by Irish Free Software Organisation, TCD Netsoc, UCD Netsoc and MiNDS>. Audio and video recordings by David Cathcart, transcript by Glenn Strong, Malcolm Tyrrell, Aidan Delaney, Ciaran O'Riordan. Proofreading by Conor Daly, Malcolm Tyrrell, Glenn Strong. Document markup by Glenn Strong. Errors and corrections to the webmaster. Note: the questions and MEP comments have not yet been proofread.

Ciaran O'Riordan

My name is Ciarán O'Riordan and I'm here from the Irish Free Software Organisation, IFSO. IFSO is a membership organisation that was set up by people who were working on the EU patents directive.

The EU patents directive is a piece of proposed legislation that will decide whether software should be patentable or not in Ireland and the rest of the EU. Like all EU laws this will override our constitution so the only chance we get to alter this directive is at the European stage. A lot of European organisations, such as the Free Software Foundation Europe and the FFII, the Foundation for a Free Information Infrastructure, have worked on this issue and there're also national organisations in most EU states.

IFSO set up in January, we're addressing this directive by talking to the MEPs and our representatives at EU level and also trying to facilitate a wider involvement of the Irish in this by trying to get information to people and organise events such as this.

This event was organised with help from the Dublin University Internet Society, the Netsoc, and also from the IT society in Maynooth, MiNDS>. And, so we have Richard Stallman here tonight. He is the founder of the GNU Project, the president of the Free Software Foundation and he is also the author of the widely used GNU General Public License, the GPL. His major software development projects include the GNU Compiler Collection, the GNU Debugger, and GNU Emacs. He has received a long list of awards that I'm not going to list for you now. But today we are very pleased to welcome to Ireland: Richard Stallman.

[Loud applause]

(go to menu)
Richard Stallman

Please raise your hand if you cannot hear me.

[No hands raised... laughter]

Although I'm mostly known for my work on developing Free Software, that's not what I'm here to speak about today. Here I'm going to speak about a proposed law that threatens to make it nearly impossible for independent software developers to develop and release software, regardless of whether it's free or proprietary or merely software for private use, which is the usual case. I'm talking about the danger of patenting software ideas.

Now, most people have been led to confuse patents and copyrights which in fact are two completely different laws that have almost nothing in common. The widely-used, confusing term "intellectual property" encourages this confusion and therefore we should reject that term completely. So let me, to help unconfuse the situation let me give a bit of explanation about how patents and copyrights differ. In fact, they have almost nothing in common, but these are some of the main differences.

Copyright covers a work of authorship. A patent covers an idea. The copyright applies to the details of the expression of the work; nothing like that in the case of a patent. Copyrights come into existence automatically, anything written is automatically copyrighted. Patents are issued by patent office in response to an application. The application has a high fee, but much more expensive is paying the lawyers to draw up the application so that it will be accepted. There are a lot of rules that you have to know how to follow in order for the application to be accepted.

Now, anything that's written will be copyrighted. There's no criterion for how good it has to be, or any kind of quality at all. But, supposedly, patents are only issued on ideas which are new, useful, and unobvious. However, practically speaking, the way this criterion is interpreted it means "unobvious to someone with an IQ of 80". [laughter] And, finally, copyrights cover copying. If you spent a year in a cave incommunicado, and you come out having written a novel that's identical to a novel someone else wrote or published during that year, you could prove, then, that you did not copy it, and that's a defence against any accusation of copyright infringement. But a patent is an absolute monopoly on the use of an idea. Even if you could prove that you had the idea yourself, that would be irrelevant: you're still not allowed to use it.

Copyrights last an incredibly long time, in some cases today they can last 150 years. Patents last a shorter time, twenty years, but in the software field, twenty years is very long. Twenty years ago, there was no world-wide web, Internet was just being started and the IBM PC was a fairly new toy and I think the Macintosh had just been released. If we were limited in developing software to combining the ideas that were known 20 years ago, there wouldn't be much of practical use today we could do.

I refer to these patents as software idea patents, to help avoid a common confusion. Many people think this is an issue about "patenting programs". But it isn't. Nobody is trying to patent specific programs; that isn't allowed, but nobody would bother even if it was allowed. A patent covering one specific program would not really matter to anyone. The reason why these patents create an issue is that they're not about specific programs, they're much more general. Each of these patents covers an idea that you might use in implementing various different programs, that lots of different programmers might use, might put into the programs that they are writing. And that's what makes them obstacles and dangers to software development activity.

The Economist once compared the patent system to a "time consuming lottery". And if you've ever seen publicity for lotteries, I'm sure you're aware that they focus a lot of attention on the unlikely possibility that you'll win, and don't mention the overwhelmingly likely possibility that you'll lose. So without exactly lying, they endeavour to give you a distorted picture of what's likely to happen to you. And it should be no surprise that the publicity for the patent system does the same thing. Most of the time, when people talk about how the patent system works, they have a vested interest in that system. Either they work for the patent office or they're patent lawyers or they might be patent holders or work for patent holders. So they tend to describe the system from the point of view of somebody who's hoping to take advantage of it. They tell you what it's like to walk down the street with 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 make up for that imbalance, I'm going to describe the patent system from the other side. I'm going to talk about what it's like to be one of the possible victims of the patent system; somebody who wants to develop or use software; what it's like to be walking down the street knowing that sometime, anytime, somebody can pull out a patent and point it at you and say "give me your money".

Suppose that you live in a country that allows software idea patents, and you want to try to work thoughtfully, with the patent system, and deal with the legal restrictions placed on your use of computers. What are you going to do? Well, the first step is to find all the patents that may restrict what you can put in the software you're about to develop. This is impossible because there are patent applications being considered now which are secret. You can't find out about them, but tomorrow or next year they may be issued and they may restrict what, and they may then prohibit the program that you're developing. And this is not just a theoretical possibility. I've seen it happen.

In 1984, the compress program was released, a program for data compression. It used the LZW compression algorithm which the author had seen in a journal article. This is back when we thought the purpose of the journals in computer science was to publish methods that we could use in our software. And at the time, in 1984, there was no patent on LZW, but in 1985 the US patent office issued a patent. The patents holder was clever and did not immediately start trying to scare people. They waited a few years, figuring "let's let people dig their holes deeper". And then they started threatening people.

So by around 1990 or so, we in the GNU project were looking for some other way to compress data. So we posted on the net asking "who can help us?". And somebody responded saying he had been working on a data compression program for a year and decided to give it to us. A couple of months later, when we were about a week away from releasing it, I saw the New York Times on the day of the week of the weekly patent column. This didn't happen very often, maybe a few times a year. And it said that somebody had got a patent for "a new method of compressing data". I thought we better look at this. And, sure enough, it covered the program we were about to release. Twice in a row.

Well, eventually someone else provided the algorithm used in the program called gzip and so everyone stopped using the other data compression programs and switched to gzip. So this particular story has a happy ending. But it's not as happy as you might think, I'll explain later.

So you can't find out about the patents that may prohibit your work tomorrow or a year from now, but you can find all the issued patents because those are published by the patent office. So that those are part of the public record, you can get them. You can't read them all, because there are too many, it would be hopeless. Keeping track of new software idea patents is a full time job.

So what you're going to have to do is search to try to find the ones that are directly relevant to restricting the kind of program you're about to develop. This is not entirely reliable.

There used to be a software idea patent in the US, covering the technique, the feature, of natural order recalculation in spreadsheets. Now what does this feature mean? It means that every time you recalculate, it waits to recalculate any cell until the cells it depends on have already been done. So one pass through it goes in the right order to make everything consistent. The earliest spreadsheets didn't do that. They ran in very small computers, the kind of computer that existed more than 20 years ago. So they would always do it top to bottom, whether that was right or not. So you might have to type recalculate recalculate recalculate recalculate a few times to make everything get consistent. Then, when computers got bigger, people figured "let's have it do the right thing for you".

So there was a patent covering this and somebody asked me for a copy, so I sent it to him and he got back to me saying "I think you sent me the wrong patent, this is something about compilers". So I looked in the records again, and saw that patent number, pulled it up and yeah, its title said "A Method for Compiling Formulas into Object Code". I looked at it again and saw, yes, it was the right patent, this was the patent that covered natural order recalculation. It actually covered the algorithm known in computer science as Topological Sort, whose first reference in the literature was in 1963. But this patent did not mention the term spreadsheet, it did not mention the term natural order recalculation, and did not mention the term topological sort. If you had been searching for the, for patents because you wanted to write a spreadsheet, you wouldn't have found out about this one, unless you heard from somebody who was getting sued [laughter]. [15:00]

However by various searching methods you'll find a lot of patents that might restrict what you're about to write. So then what. Then you've got to figure out what they mean. That's really hard because patents are written in twisted legal language and the words don't mean what you think they mean. It's very hard to understand.

The Australian Government, in the 1980s, commissioned a study on the effects of the patent system. And this study concluded that there was no reason whatsoever to believe patents did any good for Australia, and said that if it were not for international pressure they would recommend simply abolishing the system. But since there was the international pressure they recommended making patents last a shorter period of time, narrower in scope and harder to get. And in particular they said that patents were completely failing at one of their main goals which was to cause useful disclosure of ideas, because they were so hard to read that engineers essentially never read them. And they quoted an engineer saying "I can't recognise my own invention". [laughter]

I've seen this too. A programmer named Paul Heckel developed a program and then got a couple of patents related to that program, and then when he saw hypercard released by Apple it didn't look anything like his program, so he would never have dreamed that his patents might apply to it. But his lawyer said that the way the patents were written, they could arguably cover aspects of Hypercard.

So Heckel threatened Apple, and then, when that didn't get results he started threatening some of Apple's customers - because the users also can get sued. And eventually he settled somehow with Apple and got some amount of money that neither of them will tell us about. This sort of thing is a little bit like child abuse in that people don't like to talk about it. The victims are scared to talk.

So, once I was giving this speech in California, and Heckel was in the audience and he jumped up and said "That's not true - I just didn't know the scope of my protection". And I said "Yes, that's what I said". [laughter]. If I had said "No" he probably would have had some way to argue with me, but he sat back down and didn't open his mouth again. [laughter]

They love to use that propaganda word "protection", as if somehow an idea would get destroyed or become unusable if more people were allowed to use it. Reject that propaganda word. Never allow it. Never accept it. There's a lot of propaganda going on in this field. I may point out to you some other propaganda words. We've got to be vigilant against letting them into our own conversation, letting them warp our thinking.

Another propaganda phrase is "intellectual property", which I already partly explained, in trying to treat Copyright and patents as if they were one issue. Whereas software idea patents endanger software developers and copyrights don't it's completely idiotic. Their effects are so different in practical terms that it is completely self-defeating to treat them as if they were a single issue. And in general anyone who talks about intellectual property is either trying to mislead you or mislead himself. More often the latter.

To attempt to think about "the issue of intellectual property" ensures that only foolish alternatives will suggest themselves to you as natural. It's a bit like trying to discuss the question of "fluids policy". You know, fluids policy would clearly cover air, water, milk, blood, oil, and various other things - mercury [laughter]. They're all fluids. We should obviously have one policy, there's just one issue there, right?

[20:00] So, you're going to have spend a lot of time talking with a lawyer explaining what it is you're planning on doing so that the lawyer can explain to you what the patents prohibit and what they don't, and eventually the lawyer will give you an answer like this: "if you do something in this area you'll most likely lose the lawsuit. If you do something in this area you've got a considerable chance of losing, and if you really want to be safe stay out of this area. But be aware that there's a substantial element of chance in the outcome of any lawsuit".

So now that you know just what kind of business you are allowed to do and what you're not allowed to do, how are you going to deal with these patents? For each patent there are essentially three options you can try: one is to avoid the patent. Second is to get a licence for the patent, and the third is to overturn it - show it's invalid. And each of these options, based on independent factors, may or may not be possible in any one case.

(go to menu) [Section: Option #1: Avoid the patent]

So, first let's talk about the option of avoiding the patent. That means don't use the idea. For instance if you were making a spreadsheet and you wanted to avoid the natural order recalculation patent that means don't put natural order recalculation in your spreadsheet. Would have been a rather lousy spreadsheet - people wouldn't use it.

Now when another feature, another example of a patented feature, was the feature for word processors, a feature of defining an abbreviation so you could take any letters you want and define that as an abbreviation, and then say what it should stand for, and then when you type that abbreviation followed by punctuation it would automatically replace itself by the expansion. So you could define cmt as committee and then you could type cmt-space and it would turn into committee-space or cmt-comma and it would turn into committee-comma. Anyway, the word processor XYwrite had this feature, and then they discovered somebody in the 80s had patented it. So they tried negotiating with him to get a licence but they found out he was just impossible to negotiate with. And then they thought about trying to sue to overturn it in court, but they decided that was too hard - too expensive - so eventually they just took it out and they sent all the users a downgrade in the mail[laughter] - taking out that feature.

Now, how did I find out about this? Well, they wrote to me because it turns out that my text editor Emacs - the thing that I first became known for - had exactly that feature in the 1970s. So they thought that I might be able to provide them with evidence to help them overturn the patent. So they had an argument to make, they just decided it was too troublesome a way to go. Even despite having the evidence in hand. So it's nice to know I've had at least one patentable idea in my life. [laughter]

So they decided to avoid this patent. And it wasn't too hard, i guess, not having that abbreviation feature would be somewhat annoying to the users, but maybe they would still have considered the program usable. But, you know, if you look at your word processor you'll see hundreds of features, and they are all used by people even though you don't use all of the yourself. When you start taking out one feature after another after another eventually you end up with a program that the users say "this is just not good enough - it doesn't do what I want".

(go to menu) [Section: LZW, PostScript, and GIF]

Sometimes what's patented is an algorithm, for instance the LZW data compression algorithm is a good example. We avoided that patent in data compression - we developed another data compression program which uses a different algorithm so the people who thought "I want to compress my file" they used our program. So we solved that problem, but the same algorithm is used in the PostScript language. PostScript language specifies there is an operator to do LZW compression and an operator to do LZW uncompression. Well, we can find another algorithm but it's useless. [25:00]

No other algorithm produces compatible results. We can come up with another way to do data compression, but we can't implement PostScript. Not as it's specified.

Well, it turns up that wasn't too much of a disaster - only the compression is patented, not the uncompression. And people don't usually ask their printers to compress anything, they only ask the printers to uncompress. So we sort of squeaked by, just barely, on that one. But then the same algorithm is used in GIF files.

And the patent holder, Unisys, started threatening not just software developers but companies that had web sites with GIF files on them, saying "can you prove all your GIF files were made with a properly licenced program? If not we can sue you!"

Of course, people didn't take too long to develop a replacement format called "PNG" for PNG's Not Gif [laughter], which uses the gzip compression algorithm. which, by the way, does better data compression - makes smaller files than LZW. And we started saying to people "stop using GIF format - switch to PNG format". And what happened? Not much. [laughter]

The users said "we can't use PNG format, the browsers don't display that". And the browser developers said "well, we could implement PNG format but no users are asking for that". What you see is the difficulty of avoiding something that's a de-facto standard. GIF is a de-facto standard. When a de-facto standard is patented you're in real trouble.

It's not just de-facto standards that get patented, because JPEG which is an official standard released by a standards committee is also perhaps covered by a US software idea patent and people are getting sued right now. The standard committee says they don't think the patent really covers the standard, but nothing guarantees the court will agree. Who knows what will happen?

GIF is actually covered by two patents: both covering the LZW data compression algorithm that was patented twice. Now, that's not supposed to happen but it does, and the reason it happens is that the two patents are not written in the same way. You have to look at them and think about them carefully to see that they are both covering the same computation. Now if they were patents on some kind of chemical process you could say, you could have a quick way to see if you need to think about them, because you could ask yourself "are the same chemicals going in, are the same chemicals coming out? Hmm, if they are the same I guess I'd better compare these". But there's nothing like that to help you comparing these two patents on different ways of describing the same mathematics. Fact is, you could describe the same mathematics in ways that don't look exactly the same at first sight. only when you think about them do you see it's the same mathematics. And the patent office doesn't have time. I'm not going to say that some patent examiner did this because he was stupid - the fact is they have only 17 hours per patent application, and they don't have time to take this application and every other application and spend a lot of time comparing them.

This isn't the only data compression algorithm that's been patented twice, remember that program that was killed off a week before we released it? That algorithm got patented twice too. [29:00]

One or two patents covering a de-facto standard is actually a light version of the problem. Look at the MPEG-2 video standard. That's covered by 39 different US software idea patents at once! The negotiations to arrange some way that someone could license all those patents took longer than the development of the standard itself.

And people from the committee that produced the JPEG standard were trying to work on a new version but they say that software idea patents make prospective standardisation essentially impossible. [30:00]

So...sometimes you'll be able to avoid patents. Sometimes a standard means it doesn't matter even if you find a better way to do the job, it's still useless because it's not the standard. And sometimes there's a patent so broad that avoiding it is hopeless, the entire field of public key encryption was off-limits in the U.S. because of a very broad patent until 1997. We just couldn't do it. Most people couldn't do it. So that's the option of trying to avoid patents.

(go to menu) [Section: Option #2: Get a licence]

The next option it to try and get a licence to use the idea. Now that's not necessarily possible. The patent holder doesn't have to offer you a licence, the patent holder can say "I will allow no competitors, I'm shutting you down", and that does happen. I once got a letter from somebody whose family business was making casino games using computers, and he was being threatened by some competitor who had a patent, and the competitor wouldn't offer him a licence, just said "you gotta stop, you gotta close your business".

When I looked at this patent, claim one said "A network containing more than one computer where, each computer implements more than one different game, and each computer can show more than one game session at a time", that's all.

I'm sure that there were various computer labs, back in the 1980s, in universities, where they set up a network of workstations that had window systems and installed more than one multi-player game. And if so they were doing exactly what that patent described and they probably didn't even realise that there was an idea there. And this is one interesting point, the idea that a software idea patent prohibits you from using might be something you did without even conscious awareness of it as such. But anyway, the patent office tends to think that if somebody else did something once, or did one thing and this other guy does it multiple times or several different things, that's an invention. But actually in computer science it's a basic principle that anytime you have done something once that you can do it N times. That if you have one thing, you can have a choice between N different things, and if you do things, you can do them in parallel.

Anyway, although this patent was utterly absurd, we couldn't help him. He had no money to consider going to court, so he just had to shut down.

However, most patent holders will offer you a chance to get a patent licence, but they charge a lot of money for it. For instance the patent holder of the natural order recalculation patent was asking for 5% of the gross sales of every spreadsheet in the US. Now, maybe you could afford to sign one patent licence like that, but what really happens, but suppose that another patent holder comes and another and another, what happens when the twentieth patent holder asks you for 5%? And then another one comes along? Well, this is really just a joke because people in business told me that two or three such licences would be enough to drag your business into failure.

(go to menu) [Section: Cross-licensing protects big companies]

However there are some software developers for whom it's usually easy and painless to get a patent licence. And those are the global mega-corporations. Because they have lots of patents and they use those to force everybody else to cross-licence with them. IBM wrote and article in Think Magazine issue number 5 1990, about IBM's patent portfolio. It said that IBM got two types of benefit from it's 9,000 active U.S. patents. Benefit one was collecting money. Benefit two was getting access to the patents of others through cross-licencing and the article said that the value of benefit two was perhaps an order of magnitude greater than, in other words, ten times as big as benefit one.

Now this is interesting because, you see, the patent system is like a time consuming lottery. If you are a small business what happens to you from the patent system is, to a large extent, affected by randomness. But IBM is so big that IBM can measure the average for us. IBM can measure how big the benefits are and how big the harm is. And IBM's conclusion, stated in this article, was the harm is ten times a big as the benefit. Now you might think that that's impossible, it's like saying "well the children are above average, right?", it's a zero sum thing, how could the harm on the average exceed the benefit? Well the answer is, that harm dosn't really happen to IBM because IBM practises cross-licencing and avoids it. So there's this big harm and a certain amount of good, but IBM makes the harm go away so all it gets is the good. But IBM measured for us the size of the harm that didn't happen, [sniggers from audience] and that measurement is useful because while IBM has 9,000 patents and they can make everybody cross licence, if you've got a small business you aren't going to get 9,000 patents and you aren't going to be able to make most people cross-licence with you.

Now many companies say "We've gotta get some patents to defend ourselves with". Well the problem is each patent points in a particular direction, it's like a landmine buried in a certain spot. You know if I've got a patent pointing there and there, and somebody over there points a patent at me, my patents don't do me any good at all. IBM with its 9,000 US patents, it has patents pointing everywhere, so no matter where somebody is, if he attacks IBM, IBM can almost certainly threaten to shoot back. And say "lets sign a cross-licence so that neither of us gets hurt".

Interestingly, these many companies that say to their employees "Get us some patents we've gotta have something to defend ourselves with", while they like to say it's for defence, they don't offer to sign a contract with the employees committing themselves to using these patents only for defence. So, a few years later when the company has been bought out or has new management and they got this patent pointing over there well, they might just decide to use it opportunistically for aggression, and nothing can stop them then.

Now this practice of cross-licencing is very important to understand because this is why the mega-corporations want software idea patents, because they know that they will cross-licence with each other and they will form an exclusive club, and the rest of us will be down at the bottom of a cliff wondering how we're ever going to get up there. It gives for a measure of dominance over everything. And that's why they want it. It's also important to recognise that this reveals the falsehood in one common myth about the patent system. The myth of the starving genius.

(go to menu) [Section: The myth of the starving genius]

This myth starts with a scenario, which is implausible in number of ways, unlikely. It says, imagine there is a brilliant developer of whatever, who's been working for years to come up with a better way to do whatever and now it's working and he's going to start a business. And because his idea is so good his business is going to be a tremendous, it'll be a great success. Except for just one thing, which is that the big companies will come and compete with him and take all the customers away and then his business will fail and he'll starve. [laughter]

Well, this scenario is implausible whatever they say. First of all, in high-tech fields, people don't usually have ideas in isolation. Once in a while yes, but usually they have ideas because they are working in the field with other people and working on solving real problems. The next thing is that, if this person is going to start a business well, it's probably going to fail anyway no matter what. [40:00] [laughter]

Because over 90% of new businesses fail in the US and the reason is that if he's a brilliant scientist or inventor that doesn't mean he knows how to run a business for one thing. He probably doesn't. So it's probably going to fail. But supposing he does know how to run a business. Well in that case he's going to be smart enough, since he's starting a small business, to go in a direction where the advantages of small business could be helpful. Instead of trying to do the kinds of things that large companies can most easily do.

The next point is that even if the large companies compete with him, that doesn't mean he has to fail. Not if he knows how to run a business. Not all small businesses fail. And finally, since it probably is going to fail, that doesn't mean he's going to starve. If he's that smart he could probably get a job. [laughter] So it's an unlikely scenario. If this ever happens it's rare, and it isn't of great social importance what would happen given that he's not going to die, and given that there are a bunch of other unemployed people, so it's just one part of the larger social problem which we've got to solve. [laughter]

It would make no sense to decide patent policy based on this rare case - but let's look at it anyway. Here's what they say, they say that patents would make all the difference because this genius can get a patent and then when IBM tries to compete with him he can say "IBM, you can't compete with me because I've got this patent, so go away!". And according to this myth the patent will "protect him".

But here's what really happens; IBM says: [smiling] "Oh. You've got a patent" [laughter], "we've got this one, and this one, and this one that cover various parts of this complicated thing that this is making, and if you think you can go to court and fight us on all of these so we'll dig out some more. So why don't you sign a cross-licence agreement with us, and then neither of us will get hurt".

And this genius then recognises that he has to sign this cross-licence agreement and then neither of them sues each other. But what does that mean? IBM has got access to the patents of others. IBM can compete with him after all. The patent didn't "protect" the starving genius. So if IBM was going to wipe him out by competing with him, it can still do so.

The idea that patents "protect" small businesses from big competitors is false. It's a myth.

Now even IBM can't make every patent holder cross-license because IBM has patents on various ways of making things but the lawyers, you see, although patent lawyers want us to believe that patents are really wonderful, in their own lives they have understood perfectly well that that's not so. So they have made sure there are no patents on how to send a threatening letter to somebody, or how to file a lawsuit or on how to win the support of a judge or a jury.

There are patents that belong to patent parasite companies whose sole business is threatening to sue people and squeezing money out of them. And even IBM can't make them cross-license. Where IBM figures that paying them off is just part of the cost of doing business and that its competitors will have to pay them too, so they figure that they can just live with that certain level of parasitism.

There are also certain software developers for whom getting a patent licence is extremely hard. We Free Software developers. You see Free Software has been so successful because we have shown we can develop software without any money. Volunteers do it. We don't need to have money to develop powerful large programs. But we certainly need to have money if we're going to buy patent licences. A typical patent licence requires a payment per copy.

Which means that someone like me can't possibly do it. Suppose the fee were one millionth of a Euro per copy. The total amount of money involved, I might have in my pocket now, but I can't possibly fulfil that licence 'cause I can't count the copies. If it's free software that means that any of you can make more copies. If I put restrictions on you, if I force you to tell me, it wouldn't be Free Software anymore.

Now, it is possible for a patent holder to offer a licence for a lump sum, but when they do, it's usually for a large amount like $100,000. Often they want a lump sum and a fee per copy. We just won't be able to do that.

So, this is the alternative of getting a patent licence. Sometimes possible, usually fairly easy if you're IBM or Microsoft or Nokia, not very easy for smaller organisations without paying.

(go to menu) [Section: Option #3: Overturn the patent]

The third possibility is to challenge the validity of the patent. Now in order to do so, you need to have an argument to make, which means you need to present evidence that the idea was already known before a certain date. That means, in effect, that the dice were rolled sometime years ago and if you can find proof that they came out in your favour, you have an argument to go to court with, if you can afford the cost of this.

A few years ago Qualcomm was a defendant in a software idea patent lawsuit, and lost, and had to pay $13million of which $8million went to pay for lawyers on both sides. So it's expensive, somewhat, it can turn out that if you're not rich then a probably invalid software idea patent is a very dangerous weapon to be attacked with.

I should make it clear that not all software idea patents are absurdly trivial. I've mentioned a couple of those, but I don't think LZW is trivial. It's an algorithm that wasn't obvious. But, nonetheless, patenting it has done great harm. And public key encryption was a brilliant idea, but patenting it has done great harm. And abbreviations in a word processor, I wouldn't say that's brilliant, but I don't think it's trivial either. Patenting it has done nothing but harm.

So these three options are possible, and each one is possible or not in any given case based on different causes, which means, sometimes, none of them is possible, and that means your project is dead. But, in fact, people don't really usually try to look up the patents before they do something. The reason is the penalties are worse if you knew about the patent; so it's better not to know [laughter]. What people actually do is they close their eyes and they go. It's like crossing a mine field. At each step probably nothing happens [laughter], but you've got a lot of steps to take if you're developing a substantial modern program.

(go to menu) [Section: Why is software unlike other fields?]

And that's, that's an important point beause sometimes people used to ask me rather a silly question. They'd say, "Engineers in other fields have been dealing with patents for years, why should software be an exception?". Now this is a silly question because it has a foolish bias in it, you know, as if living with patents was some kind of duty that we, we all had to expose ourselves to this danger. It's like saying "other people got heart attacks, why shouldn't you?" [laughter]. Whereas as I see it, each case of a person not getting a heart attack is for the best, all else being equal, independent of what happens to the other people.

But, there is an intelligent question we can find if we excavate under that silly question, and that is: "are there relevant differences between fields that have implications for proper patent policy in these various fields?". And there is one. Namely, how big and complicated is each product? How do patents relate to products? And that's different from one field to another.

We have in our minds, a myth, a mythical picture of the patent system, which is that when you design something, there will be one and only one patent on that design, and you, the designer, will get it, if it's a new design. Well, that may have been how it worked for mechanical devices in the 1800s. It's not that way now. But different fields are further or, for that matter, closer to that. The field that's closest to that is pharmaceuticals. Until a few years ago it really worked exactly that way. That the patent, the patents in pharmaceuticals would cover the entire chemical formula of a drug. So if you developed a new drug, there'd be no patent on it, and you the developer would be the only one who would get a patent covering that drug. I'm told that this is not true anymore. Nowadays, if you develop a new drug, there may be an existing patent covering it. So it's moved away from this mythical picture, but it's not, it's still closer than any other field. And then there are the various other fields of physical engineering. The other extreme is software.

In software we make things that are very big and complicated that have lots of different features and lots of different methods going on inside. Which means that in one program, we're combining lots of different ideas that might be patented already by various different patent holders at the same time.

Now, why is this. This is no accident. It's not just a historical outcome. There's a fundamental reason for this. The reason is, that in software were making designs out of combinations by putting together idealised mathematical components. In all the other fields, people have to deal with the perversity of matter, 'cause they're making physical things. And the matter does what it does, and if it isn't what you expected, tough luck. So they have to deal with lots of problems, which we in software don't ever face.

For instance, if I put an if-statement inside of a while-loop, I don't have to worry about whether the voltage drop through the while-loop will be so much that the if-statement won't get enough voltage and it won't work [laughter]. I don't have to worry that as the while-loop goes around, the if-statement will shake and eventually come loose [laughter]. Or I don't have to worry that it will go around even faster and this if-statement will generate radio frequencies and induce wrong values elsewhere in the program [laughter]. I don't have to worry that corrosive fluids will get between the if-statement and the while-statement and eat away at the contact between them and eventually there'll be so much voltage drop that the if-statement won't work anymore. I don't have to worry that the if-statement will burn out. I don't have to worry about how I'm going to sink the heat dissipated by the operation of this if-statement. I don't have to worry how, about how, if the if-statement does crack or burn out or corrode or whatever, about how I'm going to remove it or put in a replacement if-statement. In fact, I don't have to worry about how, each time I build a copy of the program, about how I'm going to put the if-statement beside the while statement in that copy. When you design a physical product, often, really, the job is designing the factory that's going to make it. But we don't have that issue in software.

If I want to make a copy of a program, I type "cp", or maybe I type "dd", you know, there's some copy command and it'll copy any program exactly the same.

There's so many problems that we just don't have to deal with, 'cause our components aren't physical things, they're mathematical ideals and they have definitions, not just models. So they do exactly what they're supposed to do.

So, what does this mean? I presume that the intelligence spectrum of people in the software field is the same as the intelligence spectrum mechanical or electrical or chemical engineers. But their fields are harder. Our field is easier. So what do we do? We push to the limit. People push all their skills to the limit. If you make your job big enough, eventually it gets hard. And that's what we've done. We develop programs that are very very big, bigger than other things people can design when you measure in terms of how many components there are. A program with a million different parts in its design, would be a program with two or three hundred thousand lines of code, I guess. 'Cause each line has several components typically put together. And this is something that a few people can do in a few years. This is normal. This is not among the biggest programs. A physical design with a million different parts, and I mean, not repeating subunits, many of them, but a million different parts in its design, counting repetitions only once, that is a mega-project. That's at the limit of human ability.

So what does this mean? In software we can combine more different ideas in one program than people can do in any other field. And that means that the patent system causes us more gridlock, more of the land mine effect, in our field than in any other field. And the result is that software patents obstruct the main work of software development.

The main work of software progress is not getting ideas. If people are working on programs, they're going to have ideas. And they'll just immediately implement these ideas. You know, you have what you think. I could make this feature in my word-processor, and I do it. You don't have to do any research, you just have to write code. And so, having people working on software produces ideas for what you can do in software. But we also have universities where lots of people are actually getting paid, often with government funding, to come up with ideas.

To have an artificial system intended to promote people's having more ideas by obstructing software development is self defeating. It's going to result in fewer ideas, not more. Software patents are an obstacle, even to progress in software. Now this might seem unthinkable. The advocates of software idea patents ask you to take for granted that no matter what harm or trouble or nuisance these patents may cause, they must be promoting progress and surely that justifies whatever, whatever trouble they may impose on you. But this is not so. You can look at the economic modelling to show it's not so.

In www.researchoninnovation.org/patents.pdf, I warn you, it's rather mathematical, but it shows how, in a field with incremental innovation, a patent system can retard progress. The assumption that they want us to take for granted is false. And clearly incremental innovation is normal in the software field.

The same site has another paper showing that, in fact, in the US, empirically speaking, after software idea patents were allowed, the result was a decrease of investment in software R&D, because the money was transfered into patenting instead.

But there's an even more important reason to reject software idea patents. Because, patents in other fields are industrial regulations on a few specialised businesses. You know, patents on automobile engine design - how many companies do those restrict? You need to have a lot of money to set up an automobile company. But software idea patents restrict everybody with a computer. That's a large fraction of the citizens in a modern wealthy country. So you can't judge these by the same criteria. To talk about an industrial regulation is an economic issue. When you are restricting what people, what the citizens can do with their own computers that's not just an economic issue any more. That's an issue of people's rights.

Among those users, in addition to the citizens, you also find businesses. A large fraction of businesses use computers these days. And software idea patents will tie up all those businesses in a new form of bureaucracy, which is just going to make trouble for them. [60:00] Now I am not a neo-liberal. I am not against regulating businesses when it serves the public good. But tying businesses up in a bureaucracy that benefits nobody except the mega-corporations and some parasites. That's not a good reason to do it. So I call your attention to the big poster up there showing many common things that could happen on an e-commerce web site which are already patented by patents issued by the European patent office.

See the European patent office was set up by a treaty which says that software ideas are not allowed to be patented. The European patent office basically gave the finger to this treaty and to the governments of Europe and has issued over 30,000, I am told, software idea patents. But whether these patents have any validity is questionable because if somebody tried to sue somebody else with one of these patents the court might say "this patent is no good, the treaty says these things re not patentable".

So now we're trying to retroactively legitimate these patents through the current EU directive. Now this EU directive's main intent, we think, is to authorise software idea patents. But it's not just a directive about software idea patents. It's a broader directive about patents. It covers patents on ideas that relate in some way to the use of a computer for something. It also includes other kinds of things such as setting up a factory where a process is carried out and a computer decides how much of this to do or when and so on. Now those are not controversial. Nobody is actually arguing that those things should not be patentable. But the same directive would also legitimise patenting software ideas.

I actually don't have the quotation - I wonder if somebody else would be able to read it - someone from the European Commission admitted that the language of the directive was a trap designed to look like - it's designed to make it possible for them to give you the impression it's not authorising software idea patents while in fact authorising them. It says that patents must have a technical effect. Now what that means is anybody's guess, so they can reinterpret that as they like later.

You know, causing the screen to be red instead of blue because the program displays the colour red and not the colour blue. That's a technical effect if they say it is. So the directive was designed to sneakily authorise software idea patents. A large amount of opposition has been generated starting with the Free Software community but going far beyond it.

Developers of proprietary software have joined in, including well known companies. Developers of software for use within organisations are objecting. The users are objecting - there's a European organisation of 2 million small and medium enterprises that has voted to oppose software idea patents. The economists have helped by showing that these patents backfire even in their own terms. And of course there are people in politics who believe that we should all have the right to do any legitimate thing with our own computers.

So together we convinced the European parliament to conclusively reject software idea patents. The parliament in September [2003] adopted many different amendments correcting every part of that directive to exclude software idea patents but allow the other patents - the patents on the industrial process where there's some computers helping to carry that. Where there's some specific physical activity which is the subject of the patents, and is not merely the display of, or calculation of something. [65:00]

And just recently [May 2004] in a preliminary vote the council of ministers reversed most of the amendments that the parliament made. Some strange things happened in that vote and we're hoping that maybe some of the countries will change their minds when this vote requires confirmation in a few weeks. But if that doesn't happen then we're going to go to the European parliament again. They voted to reject software idea patents once maybe they will do it again. But there's about to be an election for the European parliament, so it won't be the same people. Nonetheless there were people in most of the parties voting against software idea patents. What we've got to do is confront the candidates from all the parties and at the same time put them in contact with the people in their own party who have thought about this issue and rejected software idea patents. People that they can learn from - why this issue is important and what's really at stake here. Most of them are not programmers. Most of them have never written a program, that's not their field. And they are vulnerable to being mislead by arguments that any programmer would see through. For instance, the US is number one in utilising computers, and the US has software idea patents. That must be why, right? Well the US was in the lead in utilising computers before it had software idea patents. So that's clearly not the reason why.

And then they say "the laws have to be harmonised". If there's a difference between US and European law then that would be impossible to live with. Well why don't they go to the US and ask the US government to change it's foolish laws. If the US has gang warfare and drug dealers do you want Europe to have these too just for harmonisation? [laughter]

And they say "if the US allows software idea patents and Europe does not then American companies will have an advantage". This is really playing on peoples ignorance because it's just the opposite. The US has it's own patent system which regulates everything that's done in the US. And European countries have their patent systems that regulate what happens in those countries. But anyone in the world can go the us patent office or to the European patent office and apply for a patent. So right now Europeans can apply for US software idea patents, and have got them, and can then attack us poor American's at home.

For instance, people developing MP3 encoders were attacked by the software patent that happens to belong to a European. That didn't help us, we poor American's, we can be attacked and kicked around by anybody in the world because our government has a foolish policy. But if the European union rejects software idea patents then European software developers will be safe at home, and European software users will be safe period.

So it's just the opposite: as long as the European union rejects software idea patents it has an advantage. But you know that when things are messed up in the US, the US government doesn't try to make them better it tries to mess up the rest of the world, too [laughter]. And that's exactly what's happening here. The US government is basically a flunky for the mega-corporations and is trying to serve their interests by lobbying for software idea patents in other countries. And in many cases has signed bilateral trade agreements imposing software idea patents on other countries. However, the EU is too big to be bullied that way, so it's going to be up to you to make sure that software idea patents don't threaten every software developer and every computer user in the EU.

Now I think there are going to be some other people speaking now. I'd like to mention that for those of you who happen to be supporters of the GNU project I've got some stickers to give out when people are done, and I've got a few little fund-raising items like key-rings and pins to sell. But this is not an event abut free software and GNU, so I'll just do that at the end for those that are interested, and now hand the floor over to other people. [70:00]


Ciaran O'Riordan

[inaudible] just one, candidate for the European elective



Ciaran O'Riordan

oh, we've got two, sorry. We'll start off with Eoin - is it Dubsky, who's an independent candidate.

Eoin Dubsky

Thanks - I want to thank Richard, thanks so much, very entertaining and informative. Oh, there's another one, Patricia McKenna, great - I'd vote for her. [laughter, inaudible] were in Dublin. [mic overload], [laughter & applause] [inaudible] I don't know whether richard mentioned it too which is that the Irish presidency, their major sponsors are Microsoft, and Microsoft as you know is pushing for this sort of thing, and as you know has been found by European courts and by the courts in the US to be guilty of practising unfair competition. So we know that already, it's not some sort of scare mongering. You know that already.

One other thing is that the issue of software patenting and what reminds me maybe is while speaking with other MEP candidates (you have my vote of course) people are very touchy. Everyone in Europe and certainly all the mep candidates also we're talking about genetically modified organisms and the patenting of life that's involved in that. Also Richard talked about the use of patents in an aggressive manner but that's also already used and it's already been identified as one of the methods that Monsanto has used against farmers in Canada when their what they called "intellectual property", their pollen, has polluted organic farmers and other independent farmers they will then [inaudible] right, now you owe us, now you have to give up your lives and we're going to sue you. So we're very familiar with this idea, so I wish you the very best of luck I'll be campaigning with you on this issue if i become an mep or even if i don't, thanks very much.


Patricia McKenna

So I'm Patricia McKenna, Dublin MEP and running again - and Eoin, if I was in your constituency I'd be voting for you! [laughter] - we pass on complements to each other here.

About this one issue well a number of serious questions have to be asked. I think the talk today was very interesting but there's a lack of public debate here in Ireland on this issue. I attended the joint Oireachteas there recently where the issue was raised and to be quite honest there seemed to be complete reluctance to even look at what the parliaments position was and to try and even meet the parliaments in any way. The Irish government in the presidency seem to be on the side of basically the big multinationals - Eoin mentioned there- it was interesting to see how during the Irish presidency the wishes of the European parliament have been completely ignored, how Microsoft is the major sponsor of the Irish presidency and I think there's a major [75:00] conflict of interest here with relation to that. and I have said that publicly. But at the meeting, the joint Oireachteas meeting, there was really no debate on the whole issue. the way this been got across is basically that we need software patents to ensure innovation, that without this it's going to actually stunt innovation. thats the argument that's being given, whereas i attended a (I think Richard was there as well) in Brussels as well - the greens in Brussels organised a major conference on what was called "free your computer day". I'm not sure if there was anyone here from Ireland at it, but it was quite amazing to see the number of people who are actually interested in this issue. mainly people who - I don't know what you'd call them, inventors - the people with ideas, basically who felt that their right to continue having ideas and to be able to create ideas and to come up with ideas, that this was going to be restricted as a result of putting patents on ideas.

And it's just been said, where you draw the line on where an idea comes into shape, and who actually owns that, here we're talking about major multinationals having control over ideas belonging to people who should be there for anyone to exploit and if people have good ideas they should be able to pass those off and others should be able to build on those.

But in fact I believe that the idea of patenting software is having the opposite effect, rather than encouraging innovation it is going to stunt it. But at the joint Oireachteas committee this line has been bought completely. by the members of the joint Oireachteas completely and I just think there needs to be a lot more public debate on the issue. And it's good to see such a huge crowd here at this meeting tonight. in Ireland there is a lack of public debate, there's a lack of awareness of how it's going to affect people how it's going to affect small and medium sized business, and I think it's a major question for democracy. what are we doing here?

First of all , you have the European parliament taking a position, and I have to say the position was not taken lightly, there was a massive amount of lobbying by vested interests and it was one of the issues in the parliament where I saw most lobbying I think in the time I have been there. so it wasn't easy even to get some amendments through, in the parliament, but the parliament did by a majority adopt amendments to what was being proposed by the commission. And yet despite that the council has just ignored that with the Irish government or the Irish presidency steering that, and this is just one further example. there was another example just a few days earlier of the [unclear] being handed over to the United States. And what's happening with the patenting of software is they are trying to regularise what was an illegal situation, and it is the exact same with data being handed off to the united states illegally, and while the parliament voted against what the commission were trying to do, again the commission ignored the parliament in fact they got us to vote on it three times trying to get us to change our minds, and then just went ahead anyway and ignored us.

And again they are trying to legalise an illegal situation and I think people have to stand up to this, and I think it is important to ask all of the people who are going for European election what is their position on this and you really should look at what's going on and not just accept the statements, the bland statements and excuses that are being given out about this, there are vested interests, and I think it's in the interests of everybody particularly when there are people coming along who have other ideas and they should not in any way be prevented from developing those and ensuring that others can develop them as well, and I'd like to congratulate whoever organised this meeting tonight, because I think it's a great meeting, and I hope it'll pass the word around to as many other people as possible. And put pressure not just on our own government but on other governments and there is a bit of awareness in some countries on this, more so than there was here up until tonight and I think it's great that this is being pushed to the fore here, and congratulations to those who organised it, and I see I've got some of those yellow t-shirts as well, so best of luck, thank you.[80:00]


Ciaran O'Riordan

Will you take questions?

Richard M. Stallman

I can't hear you, what did you say?

Ciaran O'Riordan

Will you take questions?

Richard M. Stallman


Ciaran O'Riordan

I think we only have one microphone.

Richard M. Stallman

The best way to do this is you stand in one place with the microphone and anyone that wants to ask questions form a line. And that way we always know who's next, it's not a matter of arbitrarily picking a hand. It's much better that way, and it's less hard than getting the microphone to people.

And please speak loud and clear, I won't understand you if you don't.

Audience Member 1

I'll try, but I'm Italian though so the language is going to be an issue but... I give it a try. I have a couple of questions, ?? topic ?? a couple of months ago and ?? better answers from you, well, and ?? could be patented, ??

Richard M. Stallman

I'm having trouble hearing you. Please try to pronounce every consonant clearly so I can recognise your words. I'm hard of hearing, make an effort please.

Audience Member 1

So, how does it work the patents in different countries?

Richard M. Stallman

Each country has it's own patent office, it's own patents, with it's own criteria. And these patents then restrict everything done in that country.

Audience Member 1

I have an idea about that, if I write software and I put it on the Internet, so my software isn't patentable in Europe, but then it's covered by some US patents, should I be worried

Richard M. Stallman

Probably not, because, they might try to sue you in the US, but you can probably just thumb your nose at them. That is, even if they win in the US, they can't enforce it on you to collect any money if you don't have any assets there - but if this happens you really should ask a lawyer what to do.

Audience Member 1

Second question is, is it a problem [??...attachments...??]

Richard M. Stallman

No. No. I think the problem is patenting software ideas, because, to write a program you have to combine lots of ideas, and you can't do that if the ideas are not available to be used and combined. [1:22:33]

Audience Member 1

Is the problem not patenting in general, not in software

Richard M. Stallman

I don't agree. Every patent covers an idea. Every patent says: "here's a certain idea which you're not allowed to use". Whatever it says in the patent, that's an idea. An idea is any product of thought, anything you can think - now, there are people who use the word quote-idea-quote in a strange way, trying to make a distinction. They like to claim that it's impossible to patent an idea, only something else, but they're using the word idea in a peculiar way. Whatever is patented it is an idea. And they're also wrong. They're trying to claim that only a specific implementation of something can be patented, but that's not true in any field. But the thing is, if patents were really very specific they would be irrelevant. The reason they matter is precisely because someone else might get a patent that covers a program that you're going to write. That's why he wants that. If it didn't cover your program, he wouldn't gain anything by having that patent.

Audience Member 1

That's it?

Richard M. Stallman

If he only wanted to cover the code he wrote, he doesn't need a patent, he has copyright covering the code he wrote.

Audience Member 2

Thank you for taking my question, it is: There is an organisation in the United States called the Public Patent Foundation. Can you offer an opinion on that organisation and it's work?

Richard M. Stallman

Well that organisation is attempting to cause re-examination of certain patents. Now if this gets rid of - if this succeeds in getting rid of some harmful patents, that would be good, but I don't think they can get rid of all of them that way. So it's like, y'know, somebody going around with a mine detector removing occasional mines. It's a step in the right direction but it's not going to make it safe to walk around.

Audience Member 2

Sorry, just following on to that, I do believe that it will - possibly their work will heighten the awareness of the problems with patents, and

Richard M. Stallman

It may. On the other hand there's a danger that people will think, "Oh, well they'll get rid of some of the invalid patents, and then the system will work". Well, I think we should get rid of all the bad software patents, which means all the software idea patents, because they're all bad because they all restrict how you can use your computer.

Some of them may be legally invalid if the law is carefully applied, but other may be legally valid if the law is carefully applied, but they all are harmful so I call them all bad. Unfortunately, only the ones which would be invalid can be eliminated perhaps by this method. Also, there are [??audio-skip??] reexamination, it leads to a procedure that goes on between the patent office and the patent holder, and the patent holder may get the chance to rewrite the patent - so that it avoids the prior art that has been shown but it still covers what a lot of people want to do.

The way it works is: you come up with prior art, which is essentially proof that people used an idea that falls was within the scope of the patent before the application was made. And then question is: how far away does something have to be from this point that you can show was published before, in order for there still to be a patent on it. And so that becomes a question of: what is the threshold that the patent system uses? And in fact their threshold is very low, the result is that points of prior art that you can show are sort of like, American soldiers in Vietnam or Iraq, they control the ground they stand on, and that's all. So, you may be able to prove that this particular idea was known fifteen years ago, but they can still draw the patent to go around it, and cover the things that people want to do today.

Audience Member 3

Hi, I wanted to hear - programming language, it is a language - so theoretically you can say that when we program, we express ourselves. By software patents, I would say actually, we limit free speech. Would you agree on that?

Richard M. Stallman

I would agree but I don't think that legal argument would convince courts by itself to rule against software patents. Not once you have EU directives overriding constitutions, and if there's an EU directive that authorises software patents, I'm afraid that this kind of argument about human rights won't get you anywhere.

Audience Member 3

And what actually, ...in the US also.

Richard M. Stallman

I really don't think so. Maybe someone someday will get a chance to try it. I am not a lawyer. The questions of what a court might or might not think, I'm not really that interested in, I'm the wrong person to ask.

I'm trying to talk about what's wise, sound policy, and what's foolish policy. As a programmer for more than 30 years, I think I can say something about that. But you should ask a lawyer about what courts are likely to believe or not believe.

Audience Member 4

Quick question, I hope it is anyway, I think one of the most famous patents is on the progress bar.[1:28:52]

Richard M. Stallman

Well, that's one example of a European Patent Office software idea patent.

Audience Member 4

I'm just curious, is there any way of circumventing that, for example...

Richard M. Stallman

I haven't seen the text of that patent, so I have no idea. The only way you can tell how many other different things are covered by that same patent is to talk with a lawyer, looking at the text of the patent.

Audience Member 4

So if instead of having a progress bar, you had a little picture drawing itself...

Richard M. Stallman

I have no way of knowing this. We can't tell from what we know. If you get that patent, and look at it with a patent lawyer, maybe you could figure it out.

Audience Member 4

And therein lies the problem.

Richard M. Stallman

Well, that's a part of the problem. But, y'know, I wouldn't say that's the whole problem. Not at all. Just the fact that you're not allowed to use a progress bar, of a standard everyday sort is a problem.

Audience Member 5

Can I, an algorithm published be patented, if published in a journal, or does it have to be in the patent process beforehand?

Richard M. Stallman

It depends on the country, but in general in Europe, once the idea has been published, then any subsequent patent application is considered invalid.

That doesn't mean that the patent office knows that you've published it - so they might accept the patents application and give you the patent. At that, given proof that you published it, that is, ten years later there's got to be a copy of the publication - that you could use to prove it really has been published, that would be evidence, you could take it to court to prove the patent is invalid. If you've got the money to go to court.

Ciaran O'Riordan

Is there one question from the other side?

Richard M. Stallman

People can - it works so much better when people make a line.

Audience Member 6

The question is, how does the two hundred, three hundred people in this room lobby, the current and MEP candidates to try to get the second reading, the way we want it?

Patricia McKenna

First of all, we don't know what the new Parliament will be, and how people will vote with the new countries coming in and what the position will be, -- we had an interesting vote just before we broke up because the ten accession countries had MEPs were in the Parliament, and had the right to vote - and that was the third time we were asked to vote on the PNR, that was the issue of the data being handed over the the U.S. without coming over proper EU data protection laws.

We were very worried that the Parliament was going to this time vote by majority to accept what the commission was doing, but interestingly enough it didn't.

So, I'm just wondering next time, it depends on, I suppose, the make up of the Parliament, first of all, particularly in relation to the new countries, and how they're going to be influenced by the lobbying from the big multinational interests.

In relation to the Irish MEPs themselves, I suppose it's important to try to get some sort of commitment from all the people that are running in Ireland, I'm not sure how many candidates are running in total but I think it's about twelve in Dublin and thirteen in the East. But it would be really important to try and get commitment from them, but at the second reading it's going to be even more difficult to get a majority that's required to ensure that the existing position of the Parliament is upheld.

But also it's not just the Parliament itself, it's very important that that's your priority to get the Parliament to adopt a similar position to last time. Even though we didn't think it was great, I have to say, it was better than what was being proposed, but the second thing is to get the government, and that includes local government, [????] there's been very little public debate on this, at a national level. And how it's going to effect small and medium-sized enterprise, in relation to this.

I think there's two challenges, [????] and also to our government.

Audience Member 7

I just wanted to, get your opinion on, you seem to have focused on software patents, as if ?? you couldn't draw a line ?? many patents were drawn against physical systems, but they could be applied to a software version.

Richard M. Stallman

Well they shouldn't be.

Audience Member 7

Well, that's ??

Richard M. Stallman

I can't hear you, what are you saying? It's really unfair for you to say things I can't hear, and then I'm supposed to respond to them.

Audience Member 7

A classical example would be the concept of semaphores and signals. ?? railways.

Richard M. Stallman

What? What? what?

Audience Member 7

The system of semaphores and signals. They were part of a system for railways.

Richard M. Stallman

That has nothing to do with anything going on in a computer. Patenting a mechanical system for moving up a bar to tell a train what to do, that patent wouldn't cover anything going on in a program. That's a patent on a mechanical device.

Audience Member 7

But if ?? concept ??

Richard M. Stallman

You're saying this, I don't if it's true what that patent covered, I haven't seen it, have you actually read that patent?

Audience Member 7

It's expired now, but it would have covered semaphores and signals in Unix.

Richard M. Stallman

Then, I guess we have to say that those patents shouldn't be allowed either. Allowing someone to patent building a signaling machine to display lights to tell a train what to do, okay, I'm not an expert on how to run railways, but such a general patent that would cover what goes on in software would have to be rejected, or else we have to perhaps say we would have to say that it doesn't apply to the software.

Audience Member 7

?? business methods ??

Richard M. Stallman

Well, that's exactly part of the problem, allowing software idea patents allows patenting of business methods and that's a stupid thing in itself.[1:35:55]

Audience Member 7

?? ??

Richard M. Stallman

I don't know what you mean, business methods shouldn't be patentable in any domain.

Audience Member 7

But ??, I guess there are fuzzy areas.

Richard M. Stallman

There are fuzzy areas everywhere, they are not an important problem. Courts are constantly dealing with fuzzy areas. That's what courts are for. And so basically, when people want a policy to stretch all the way across, they make the idea that to have to draw any line in between would be impossible, but that's what courts are for, to interpret the lines that are drawn between many cases.

Consider the fuzzy line between drunk and sober. There's no one natural right place to draw a line between drunk and sober. And I can say this is - you can see this is absolutely true. It's not just that we can't see the place to draw the line, we know there's none. Does that mean that laws can't distinguish between drunk and sober? obviously not. It just means that there's going to have to be a line drawn somewhere, and it isn't going to be at one place which was the only right possible place. That's alright, we need a line between there somewhere. We don't want to treat drunk drivers and sober drivers alike. So we'll have a line somewhere, and the courts will figure out exactly some place for it to go, and it won't be the only possible place, y'know if they'd put the line a little bit this way or a little bit that way it would be okay too.

Audience Member 8

Just one question, I was talking to people who are involved in drawing up some of these documents. And I put the case of, "software patents are bad", all this, but they say things like "we don't have a choice, the WIPO demands that we implement software patents".

Richard M. Stallman

There is not WIPO treaty about this. WIPO are thinking about a substantive patent law treaty - they're making it all up, they do this constantly. Some of them may claim that TRIPS, or TRIPES as I prefer to call it, it's the "Trade Restricting Impediments to Production, Education, and Science". Some people will claim that TRIPES requires software patents but it doesn't. They make all sorts of bizarre all sorts of claims hoping that they can escape from the conversation without looking like they're mistaken on the spot. They say, they say -. I gave a speech on this topic last Friday in London, and messages were read out from someone from the UK Labour party and the Conservative party, and they were trying to give the impression that the directive as the Commission wrote it does not authorise software idea patents. Well, it's not true but they hope they could get away with the pretense. If this directive goes through, there'll be no hope of ever revising it because to revise it we need to get all three branches of the EU to work together. To block it we only need one maybe but to revise it we need all three. So they figure if they can get it across there will be nothing we can do and it won't matter if they're seen to have been saying utter nonsense.

Ciaran O'Riordan

Ok, we have to close the hall, do you have any closing comments?

Richard M. Stallman

Ok, well: No I don't.


Ciaran O'Riordan

I just want to make a closing comment myself. The website for IFSO is ifso.ie, it should contain information for how to work on software patents, or on the patents directive. And also other information on the legislative process and how to lobby the European Parliament and the European Council. So if you want to help, take a look at the website.[1:40:57]

Richard M. Stallman

I have two websites I want to recommend also, about this issue: www.ffii.org - that's the site with the most information about the situation in European regarding software idea patents. And then there's another site which is very good for introducing people to the issue, and that is softwarepatents.co.uk.

Ciaran O'Riordan

Ok, sorry, one second, we have one last MEP candidate who has just: Ivana Bacik

Ivana Bacik

Sorry, and sorry to be taking your time and I'm very sorry to be arriving late, I was out canvasing. My name is Ivana Bacik, I'm running for the Labour party for the European Parliament elections this year. As many of you probably know, I teach law in Trinity, in the law school in Trinity, but I'm just here because this is an issue I feel strongly about. I would like to lend my support, and as much support as I can from the party as well, to the campaign for free software. Thank you, and sorry to take up your time, thanks.