Mail Archives: djgpp/1992/05/20/13:06:41
Attached is a mail message I got from Richard Stallman some time ago.
DJ
--
The first two pages are the invitation to join and membership form.
We usually print them back-to-back.
The following two pages are the two position papers, in Texinfo
format. To format these for printing, you need TeX plus the Texinfo
macro package that comes with GNU Emacs. If you just want to read them,
you'll find it easy enough to read them without formatting them.
Protect Your Freedom to Write Programs
Join the League for Programming Freedom
(Version of January 26, 1991)
Ten years ago, programmers were allowed to write programs using all
the techniques they knew, and providing whatever features they felt
were useful. This is no longer the case. The new monopolies,
software patents and interface copyrights, have taken away our
freedom of expression and our ability to do a good job.
"Look and feel" lawsuits attempt to monopolize well-known command
languages; some have succeeded. Copyrights on command languages
enforce gratuitous incompatibility, close opportunities for
competition, and stifle incremental improvements.
Software patents are even more dangerous; they make every design
decision in the development of a program carry a risk of a lawsuit,
with draconian pretrial seizure. It is difficult and expensive to
find out whether the techniques you consider using are patented; it is
impossible to find out whether they will be patented in the future.
The League for Programming Freedom is a grass-roots organization of
professors, students, businessmen, programmers and users dedicated to
bringing back the freedom to write programs. The League is not
opposed to the legal system that Congress intended--copyright on
individual programs. Our aim is to reverse the recent changes made by
judges in response to special interests, often explicitly rejecting
the public interest principles of the Constitution.
The League works to abolish the new monopolies by publishing articles,
talking with public officials, boycotting egregious offenders, and in
the future may intervene in court cases. On May 24, 1989, the League
picketed Lotus headquarters on account of their lawsuits, and then
again on August 2, 1990. These marches stimulated widespread media
coverage for the issue. We welcome suggestions for other activities,
as well as help in carrying them out.
Membership dues in the League are $42 per year for programmers,
managers and professionals; $10.50 for students; $21 for others.
Please give more if you can. The League's funds will be used for
filing briefs; for printing handouts, buttons and signs; whatever will
persuade the courts, the legislators, and the people. You may not get
anything personally for your dues--except for the freedom to write
programs. The League is a non-profit corporation, but not considered
a tax-exempt charity. However, for those self-employed in software,
the dues can be a business expense.
The League needs both activist members and members who only pay their
dues. We also greatly need additional corporate members; contact us
for information.
If you have any questions, please write to the League, phone
(617) 243-4091, or send Internet mail to league AT prep DOT ai DOT mit DOT edu.
Jack Larsen, President
Chris Hofstader, Secretary
Steve Sisak, Treasurer
Jack Larsen can be contacted at (708) 698-1160; Fax (708) 698-6221.
To join, please send a check and the following information to:
League for Programming Freedom
1 Kendall Square #143
P.O.Box 9171
Cambridge, Massachusetts 02139
(Outside the US, please send a check in US dollars on a bank
having a US correspondant bank, to save us check cashing fees.)
Your name:
The address for League mailings (a few each year):
The company you work for, and your position:
Your phone numbers (home, work or both):
Your email address, so we can contact you for demonstrations or for
writing letters. (If you don't want us to contact you for these
things, please say so, but please give us your email address anyway.)
Is there anything about you which would enable your endorsement of the
LPF to impress the public? For example, if you are or have been a
professor or an executive, or have written software that has a good
reputation, please tell us.
Would you like to help with LPF activities?
The corporate charter of the League for Programming Freedom states:
The purpose of the corporation is to engage in the following
activities:
1. To determine the existence of, and warn the public about
restrictions and monopolies on classes of computer programs where such
monopolies prevent or restrict the right to develop certain types of
computer programs.
2. To develop countermeasures and initiatives, in the public interest,
effective to block or otherwise prevent or restrain such monopolistic
activities including education, research, publications, public
assembly, legislative testimony, and intervention in court proceedings
involving public interest issues (as a friend of the court).
3. To engage in any business or other activity in service of and
related to the foregoing paragraphs that lawfully may be carried on
by a corporation organized under Chapter 180 of the Massachusetts
General Laws.
The officers and directors of the League will be elected annually by
the members.
\input texinfo
@setfilename look-and-feel
@settitle Against User Interface Copyright
@headings double
@center @titlefont{Against User Interface Copyright}
@sp 1
@center (October 20, 1991)
@sp 1
@center The League for Programming Freedom
In June 1990, Lotus won a copyright infringement suit against Paperback
Software, a small company that implemented a spreadsheet that obeys the
same keystroke commands used in Lotus 1-2-3. Paperback was not accused
of copying code from 1-2-3---only of supporting compatible user
commands. Such imitation was common practice until unexpected court
decisions in recent years extended the scope of copyright law.
Within a week, Lotus went on to sue Borland over Quattro, a spreadsheet
whose usual command language has only a few similarities to 1-2-3. Lotus
claims that these similarities in keystroke sequences and/or the ability
to customize the interface to emulate 1-2-3 are enough to infringe.
More ominously, Apple Computer has sued Microsoft and Hewlett Packard
for implementing a window system whose displays partially resemble those
of the Macintosh system. Subsequently Xerox sued Apple for implementing
the Macintosh system, which derives some general concepts from the
earlier Xerox Star system. These suits try to broaden the Lotus
decision and establish copyright on a large class of user interfaces.
The Xerox lawsuit was dismissed because of a technicality; but if it had
succeeded, it would probably have created an even broader monopoly than
the Apple lawsuit may.
And Ashton-Tate has sued Fox Software for implementing a database
program that accepts the same programming language used in dBase. This
particular lawsuit was dropped by Borland, which bought Ashton-Tate in
1991, but the possibility of copyrighted programming languages remains.
Adobe claims that the Postscript language is copyrighted, though it has
not sued those who reject this claim. Wolfram Reasearch claims that the
language of Mathematica is copyrighted and has threatened to sue the
University of California. If a programming language becomes
copyrighted, the impact on users who have spent years writing programs
in the language would be devastating.
While this paper addresses primarily the issue of copyright on specific
user interfaces, most of the arguments apply with added force to any
broader monopoly.
@heading What Is a User Interface?
A user interface is what you have to learn to operate a machine; in
other words, it is the language you use to communicate with the machine.
The user interface of a typewriter is the layout of the keys. The user
interface of a car includes a steering wheel for turning, pedals to
speed up and slow down, a lever to signal turns, etc.
When the machine is a computer program, the interface includes that of
the computer---its keyboard, screen and mouse---plus those aspects
specific to the program. These typically include the commands, menus,
programming languages, and the way data is presented on the screen.
A copyright on a user interface means a government-imposed monopoly on
its use. In the example of the typewriter, this would mean that each
manufacturer would be forced to arrange the keys in a different layout.
@heading The Purpose of Copyright
In the United States, the Constitution says that the purpose of
copyright is to ``promote the progress of science and the useful arts.''
Conspicuously absent is any hint of intention to enrich copyright
holders to the detriment of the users of copyrighted works.
The Supreme Court made the reason for this absence explicit, stating in
@cite{Fox Film vs.@: Doyal} that ``The sole interest of the United
States and the primary object in conferring the [copyright] monopoly lie
in the general benefits derived by the public from the labors of
authors.''
In other words, since copyright is a government-imposed monopoly,
which interferes with the freedom of the public in a significant way,
it is justified only if the benefit to the public exceeds the cost
to the public.
The spirit of individual freedom must, if anything, incline us against
monopoly. Following either the Supreme Court or the principle of
freedom, the fundamental question is: what value does user interface
copyright offer the public---and what price would we have to pay for it?
@heading Reason #1: More Incentive Is Not Needed
The developers of the Star, the Macintosh system, 1-2-3 and dBase
claim that without interface copyright there would be insufficient
incentive to develop such products. This is disproved by their own
actions.
Until 1986, user interface copyright was unheard of. The computer
industry developed under a system where imitating a user interface was
both standard practice and lawful. Under this system, today's
plaintiffs made their decisions to develop their products. When faced
with the choice in actuality, they decided that they did, indeed, have
``enough incentive''.
Even though competitors were free to imitate these interfaces, this did
not prevent most of the original products from being successful and
producing a large return on the investment. In fact, they were so
successful that they became @i{de facto} standards. (The Xerox Star was
a failure due to poor marketing even though nothing similar existed.)
Even if interface copyright would increase the existing incentive,
additional improvements in user interfaces would not necessarily result.
Once you suck a bottle dry, more suction won't get more out of it. The
existing incentive is so great that it may well suffice to motivate
everyone who has an idea worth developing. Extra incentive, at the
public's expense, will only increase the price of these developments.
@heading Reason #2: ``Look and Feel'' Will Not Protect Small Companies
The proponents of user interface copyright claim that it would protect
small companies from being wiped out by large competitors. Yet look
around: today's interface copyright plaintiffs are large, established
companies. User interface copyright is crushing when the interface is
an effective standard. However, a small company is vulnerable when its
product is little used, and its interface is little known. In this
situation, user interface copyright won't help the small company much.
Imagine a small company with 10,000 customers: a large company may
believe there is a potential market of a million users, not reached by
the small company, for a similar product. The large company will try to
use its marketing might to reach them before the small company can.
User interface copyright won't change this outcome. Forcing the large
company to develop an incompatible interface will have little effect on
the majority of potential customers---those who have not learned the
other interface. They will buy from the large company anyway.
What's more, interface copyright will work against the small company if
the large company's product becomes an effective standard. Then new
customers will have an additional reason to prefer the large company.
To survive, the small company will need to offer compatibility with this
standard---but, due to user interface copyright, it will not be allowed
to do so.
Instead of relying upon monopolistic measures, small companies are
most successful when they rely on their own inherent advantages:
agility, low overhead, and willingness to take risks.
@heading Reason #3: Diversity in Interfaces Is Not Desirable
The copyright system was designed to encourage diversity; its details
work toward this end. Diversity is the primary goal when it comes to
novels, songs, and the other traditional domains of copyright. Readers
want to read novels they have not yet read.
But diversity is not the goal of interface design. Users of any kind of
machinery want consistency in interfaces because this promotes ease of
use. Thus, by standardizing symbols on automobile dashboards, we have
made it possible for any licensed driver to operate any car without
additional instruction. Incompatibility in interfaces is a price to be
paid when worthwhile, not a benefit.
Significantly better interfaces may be hard to think of, but it is easy
to invent interfaces which are merely different. Interface copyright
will surely succeed in encouraging this sort of ``interface
development''. The result will be gratuitous incompatibility.
@heading Reason #4: Meaningful Competition Is Reduced
Under the regime of interface copyright, there will be no compatible
competition for established products. For a user to switch to a
different brand will require retraining.
But users don't like to retrain, not even for a significant improvement.
For example, the Dvorak keyboard layout, invented several decades ago,
enables a typist to type faster and more accurately than is possible
with the standard ``QWERTY'' layout. Nonetheless, few people use it.
Even new typists don't learn Dvorak, because they want to learn the
layout used on most typewriters.
Alternative products that require such an effort by the consumer are not
effective competition. The monopoly on the established interface will
yield in practice a monopoly on the functionality accessed by it. This
will cause higher prices and less technological advancement---a windfall
for lucky businesses, but bad for the public at large.
@heading Reason #5: Incompatibility Does Not Go Away
If there had been a 50-year interface copyright for the steering
wheel, it would have expired not long ago. During the span of the
copyright, we would have got cars steered with joysticks, cars steered
with levers, and cars steered with pedals. Each car user would have
had to choose a brand of car to learn to drive, and it would not be
easy to switch.
The expiration of the copyright would have freed manufacturers to switch
to the best of the known interfaces. But if Ford cars were steered with
wheels and General Motors were steered with pedals, neither company
could change interface without abandoning their old customers. It would
take decades to converge on a single interface.
@heading Reason #6: Users Invest More Than Developers
The plaintiffs like to claim that user interfaces represent large
investments on their part.
In fact, the effort spent designing the user interface of a computer
program is usually small compared to the cost of developing the
program itself. The people who make a large investment in the user
interface are the users who train to use it. Users have spent much
more time and money learning to use 1-2-3 than Lotus spent developing
the entire program, let alone what Lotus spent develop the program's
interface @emph{per se}.
Thus, if investment justifies ownership, it is the users who should be
the owners. The users should be allowed to decide---in the
marketplace---who may use it. According to @cite{Infoworld} (mid
January 1989), computer users in general expect user interface copyright
to be harmful.
@heading Reason #7: Discrimination Against Software Sharing
User interface copyright discriminates against freely redistributable
software, such as freeware, shareware and public domain software.
Although it @emph{may} be possible to license an interface for a
proprietary program, if the owner is willing, these licenses require
payment, usually per copy. There is no way to collect this payment for
a freely redistributable program. The result will be a growing body of
interfaces that are barred to non-proprietary software.
Authors of these programs donate to the public the right to share them,
and sometimes also to study and change their workings. This is a public
service, and one less common than innovation. It does not make sense to
encourage innovation of one sort with means that bar donation of another
sort.
@heading Reason #8: Copyright Will Be a Tool For Extortion
The scope of interface copyright is so vague and potentially wide that
it will be difficult for any programmer to be sure of being safe from
lawsuits. Most programs need an interface, and there is usually no way
to design an interface except based on the ideas you have seen used
elsewhere. Only a great genius would be likely to envision a usable
interface without a deep resemblance to current practice. It follows
that most programming projects will risk an interface infringement suit.
The spirit of ``Millions for defense, but not a cent for tribute'' is
little honored in business today. Customers and investors often avoid
companies that are targets of suits; an eventual victory may come years
too late to prevent great loss or even bankruptcy. Therefore, when
offered a choice between paying royalties and being sued, most
businesses pay, even if they would probably win a suit.
Since this tendency is well known, companies often take advantage of it
by filing or threatening suits they are unlikely to win. As long as any
interface copyright exists, this form of extortion will broaden its
effective scope.
@heading Reason #9: Useful Innovation Is Inhibited
Due to the evolutionary nature of interface development, interface
copyright will actually retard progress.
Fully fleshed-out interfaces don't often arise as @emph{tours de force} from
the minds of isolated masters. They result from repeated
implementations, by different groups, each learning from the results of
previous attempts. For example, the Macintosh interface was based on
ideas tried previously by Xerox and SRI, and before that by the Stanford
Artificial Intelligence Laboratory. The Xerox Star also drew on the
interface ideas that came from SRI and SAIL. 1-2-3 adapted the
interface ideas of Visicalc and other spreadsheets. dBase drew on a
program developed at the Jet Propulsion Laboratory.
This evolutionary process resembles the creation of folk art rather than
the way symphonies, novels or films are made. The advances that we
ought to encourage are most often small, localized changes to what
someone else has done. If each interface has an owner, it will be
difficult to implement such ideas. Even assuming the owner will license
the interface that is to be improved, the inconvenience and expense
would discourage all but the most determined.
Users often appreciate small, incremental changes that make programs
easier or faster to use. This means changes that are upwards
compatible, or affect only part of a well-known interface. Thus, on
computer keyboards, we now have function keys, arrow keys, a delete key
and a control key, which typewriters did not have. But the layout of
the letters is unchanged.
However, such partial changes as this are not permitted by copyright
law. If any significant portion of the new interface is the same as a
copyrighted interface, the new interface is illegal.
@heading Reason #10: Interface Developers Don't Want Interface Copyright
At the 1989 ACM Conference on Computer-Human Interaction, Professor
Samuelson of the Emory School of Law presented a ``mock trial'' with
legal arguments for and against user interface copyright, and then asked
the attendees---researchers and developers of user interfaces---to fill
out a survey of their opinion on the subject.
The respondents overwhelmingly opposed all aspects of user interface
copyright, by as much as 4 to 1 for some aspects. When they were asked
whether user interface copyright would harm or help the field, on a
scale from 1 (harm) to 5 (help), the average answer was
1 DOT 6 DOT AT footnote{See the May 1990 issue of the @cite{Communications of the
ACM}, for the full results.}
The advocates of user interface copyright say that it would provide
better security and income for user interface designers. However, the
survey shows that these supposed beneficiaries would prefer to be let
alone.
@heading Do You Really Want a User Interface Copyright?
For a business, ``locking in'' customers may be profitable for a time.
But, as the vendors of proprietary operating systems have found out,
this generates resentment and eventually drives customers to try to
escape. In the long run, this leads to failure.
Therefore, by permitting user interface copyright, society encourages
counterproductive thinking in its businesses. Not all businesses can
resist this temptation; let us not tempt them.
@heading Conclusion
Monopolies on user interfaces do not serve the users and do not
``promote the progress of science and the useful arts.'' User
interfaces ought to be the common property of all, as they undisputedly
were until a few years ago.
@heading What You Can Do
@comment Feel free to delete this section when sending a copy
@comment to a politician
@itemize @bullet
@item
Don't do business as usual with the plaintiffs, Xerox, Lotus, and Apple.
Buy from their competitors instead; sell their stock; develop new
software for other computer systems rather than theirs, and port
existing applications away from their systems.
@item
Don't work for the ``look and feel'' plaintiffs or accept contracts
from them.
@item
Join the League for Programming Freedom---a grass-roots organization of
programmers and users opposing software patents and interface
copyrights. (The League is not opposed to copyright on individual
programs.) Annual dues are $42 for employed professionals, $10.50 for
students, and $21 for others. We appreciate activists, but members who
cannot contribute their time are also welcome.
Phone us at (617) 243-4091, send Internet mail to
@code{league@@prep.ai.mit.edu}, or write to:
@display
League for Programming Freedom
1 Kendall Square #143
P.O. Box 9171
Cambridge, MA 02139
@end display
@item
Give copies of this paper to your friends, colleagues and customers.
@item
In the United States, write to your representatives and to these
Congressional subcommittees:
@display
House Subcommittee on Intellectual Property
2137 Rayburn Bldg
Washington, DC 20515
@end display
@display
Senate Subcommittee on Patents, Trademarks and Copyrights
United States Senate
Washington, DC 20510
@end display
@item
The European Community has adopted a directive whose most natural
interpretation imposes copyright on all kinds of interfaces, even on
programming languages. Since the other countries of Europe are
considering joining the EC, they also are in danger of being covered
by the directive.
Other, benign interpretations of the directive are also possible, but
they are unlikely to be chosen by judges unless the governments of the
individual EC countries explicitly mandate them. Convincing the
governments requires political pressure from the programmers and users
of Europe.
Lobbyists working on this issue say that most legislators are unfamiliar
with computers and do not understand how harmful interface copyright
could be. Thus, what programmers need to do is to educate their
legislators.
One idea is to start teaching your representative the basics of using
1-2-3. Once the representative sees how much work is involved in
learning to use a command language, explain that you have only taught
one tenth of the subject. This should drive the point home.
Political effectiveness requires organization. Leagues for Programming
Freedom now exist in Finland, Germany, the United Kingdom, the
Netherlands, Norway, and Switzerland. (In the UK, the Edinburgh
Computing and Social Responsibility organization also deals with this
issue.) Ask the League in the US for the address of your nation's
League---or for advice and assistance in forming one.
@end itemize
@bye
\input texinfo @c -*-texinfo-*-
@comment %**start of header
@setfilename patents.info
@settitle Against Software Patents
@comment %**end of header
@sp 7
@center @titlefont{Against Software Patents}
@sp 1
@center (February 28, 1991)
@sp 1
@center The League for Programming Freedom
@sp 1
@headings double
Software patents threaten to devastate America's computer industry.
Patents granted in the past decade are now being used to attack
companies such as the Lotus Development Corporation for selling programs
that they have independently developed. Soon new companies will often
be barred from the software arena---most major programs will require
licenses for dozens of patents, and this will make them infeasible.
This problem has only one solution: software patents must be eliminated.
@heading The Patent System and Computer Programs
The framers of the United States Constitution established the patent
system so that inventors would have an incentive to share their
inventions with the general public. In exchange for divulging an
invention, the patent grants the inventor a 17 year monopoly on its use.
The patent holder can license others to use the invention, but may also
refuse to do so. Independent reinvention of the same technique by
others does not give them the right to use it.
Patents do not cover specific systems: instead, they cover particular
techniques that can be used to build systems, or particular features
that systems can offer. Once a technique or feature is patented, it may
not be used in a system without the permission of the
patent-holder---even if it is implemented in a different way. Since a
computer program typically uses many techniques and provides many
features, it can infringe many patents at once.
Until recently, patents were not used in the software field. Software
developers copyrighted individual programs or made them trade secrets.
Copyright was traditionally understood to cover the implementation
details of a particular program; it did not cover the features of the
program, or the general methods used. And trade secrecy, by definition,
could not prohibit any development work by someone who did not know the
secret.
On this basis, software development was extremely profitable, and
received considerable investment, without any prohibition on independent
software development. But this scheme of things is no more. A change
in U.S.@: government policy in the early 1980's stimulated a flood of
applications. Now many have been approved, and the rate is
accelerating.
Many programmers are unaware of the change and do not appreciate the
magnitude of its effects. Today the lawsuits are just beginning.
@heading Absurd Patents
The Patent Office and the courts have had a difficult time with computer
software. The Patent Office refused until recently to hire Computer
Science graduates as examiners, and in any case does not offer
competitive salaries for the field. Patent examiners are often
ill-prepared to evaluate software patent applications to determine if
they represent techniques that are widely known or obvious---both of
which are grounds for rejection.
Their task is made more difficult because many commonly-used software
techniques do not appear in the scientific literature of computer
science. Some seemed too obvious to publish while others seemed
insufficiently general; some were open secrets.
Computer scientists know many techniques that can be generalized to
widely varying circumstances. But the Patent Office seems to believe
that each separate use of a technique is a candidate for a new patent.
For example, Apple was sued because the Hypercard program allegedly
violates patent number 4,736,308, a patent that covers displaying
portions of two or more strings together on the screen---effectively,
scrolling with multiple subwindows. Scrolling and subwindows are
well-known techniques, but combining them is now apparently illegal.
The granting of a patent by the Patent Office carries a presumption in
law that the patent is valid. Patents for well-known techniques that
were in use many years before the patent application have been upheld by
federal courts. It can be hard to prove a technique was well known at
the time in question.
For example, the technique of using exclusive-or to write a cursor onto
a screen is both well known and obvious. (Its advantage is that another
identical exclusive-or operation can be used to erase the cursor without
damaging the other data on the screen.) This technique can be
implemented in a few lines of a program, and a clever high school
student might well reinvent it. But it is covered by patent number
4,197,590, which has been upheld twice in court even though the
technique was used at least five years before the patent application.
Cadtrak, the company that owns this patent, collects millions
of dollars from large computer manufacturers.
English patents covering customary graphics techniques, including
airbrushing, stenciling, and combination of two images under control of
a third one, were recently upheld in court, despite the testimony of the
pioneers of the field that they had developed these techniques years
before. (The corresponding United States patents, including 4,633,416
and 4,602,286, have not yet been tested in court, but they probably will
be soon.)
All the major developers of spreadsheet programs have been threatened on
the basis of patent 4,398,249, covering ``natural order recalc''---the
recalculation of all the spreadsheet entries that are affected by the
changes the user makes, rather than recalculation in a fixed order.
Currently Lotus alone is being sued, but a victory for the plaintiff in
this case would leave the other developers little hope. The League has
found prior art that may defeat this patent, but this is not assured.
Nothing protects programmers from accidentally using a technique that is
patented, and then being sued for it. Taking an existing program and
making it run faster may also make it violate half a dozen patents that
have been granted, or are about to be granted.
Even if the Patent Office learns to understand software better, the
mistakes it is making now will follow us into the next century, unless
Congress or the Supreme Court intervenes to declare these patents void.
However, this is not the whole of the problem. Computer programming is
fundamentally different from the other fields that the patent system
previously covered. Even if the patent system were to operate ``as
intended'' for software, it would still obstruct the industry it is
supposed to promote.
@heading What Is ``Obvious''?
The patent system will not grant or uphold patents that are judged to be
obvious. However, the system interprets the word ``obvious'' in a way
that might surprise computer programmers. The standard of obviousness
developed in other fields is inappropriate for software.
Patent examiners and judges are accustomed to considering even small,
incremental changes as deserving new patents. For example, the famous
@cite{Polaroid vs.@: Kodak} case hinged on differences in the number and
order of layers of chemicals in a film---differences between the
technique Kodak was using and those described by previous, expired
patents. The court ruled that these differences were unobvious.
Computer scientists solve problems quickly because the medium of
programming is tractable. They are trained to generalize solution
principles from one problem to another. One such generalization is that
a procedure can be repeated or subdivided. Programmers consider this
obvious---but the Patent Office did not think that it was obvious when
it granted the patent on scrolling multiple strings, described above.
Cases such as this cannot be considered errors. The patent system is
functioning as it was designed to do---but with software, it produces
outrageous results.
@heading Patenting What Is Too Obvious to Publish
Sometimes it is possible to patent a technique that is not new precisely
because it is obvious---so obvious that no one would have published a
paper about it.
For example, computer companies distributing the free X Window System
developed by MIT are now being threatened with lawsuits by AT&T over
patent number 4,555,775, covering the use of ``backing store'' in a
window system that lets multiple programs have windows. Backing store
means that the contents of a window that is temporarily partly hidden
are saved in off-screen memory, so they can be restored quickly if the
obscuring window disappears.
Early window systems were developed on computers that could not run two
programs at once. These computers had small memories, so saving window
contents was obviously a waste of scarce memory space. Later, larger
multiprocessing computers led to the use of backing store, and to
permitting each program to have its own windows. The combination was
inevitable.
The technique of backing store was used at MIT in the Lisp Machine
System before AT&T applied for a patent. (By coincidence, the Lisp
Machine also supported multiprocessing.) The Lisp Machine developers
published nothing about backing store at the time, considering it too
obvious. It was mentioned when a programmers' manual explained how to
turn it on and off.
But this manual was published one week after the AT&T patent
application---too late to count as prior art to defeat the patent. So
the AT&T patent may stand, and MIT may be forbidden to continue using a
method that MIT used before AT&T.
The result is that the dozens of companies and hundreds of thousands of
users who accepted the software from MIT on the understanding that it
was free are now faced with possible lawsuits. (They are also being
threatened with Cadtrak's exclusive-or patent.) The X Window System
project was intended to develop a window system that all developers
could use freely. This public service goal seems to have been thwarted
by patents.
@heading Why Software Is Different
Software systems are much easier to design than hardware systems of the
same number of components. For example, a program of 100,000 components
might be 50,000 lines long and could be written by two good programmers
in a year. The equipment needed for this costs less than $10,000; the
only other cost would be the programmers' own living expenses while
doing the job. The total investment would be less than a $100,000. If
done commercially in a large company, it might cost twice that. By
contrast, an automobile typically contains under 100,000 components; it
requires a large team and costs tens of millions of dollars to design.
And software is also much cheaper to manufacture: copies can be made
easily on an ordinary workstation costing under ten thousand dollars.
To produce a complex hardware system often requires a factory costing
tens of millions of dollars.
Why is this? A hardware system has to be designed using real
components. They have varying costs; they have limits of operation;
they may be sensitive to temperature, vibration or humidity; they may
generate noise; they drain power; they may fail either momentarily or
permanently. They must be physically assembled in their proper places,
and they must be accessible for replacement in case they fail.
Moreover, each of the components in a hardware design is likely to
affect the behavior of many others. This greatly complicates the task
of determining what a hardware design will do: mathematical modeling may
prove wrong when the design is built.
By contrast, a computer program is built out of ideal mathematical
objects whose behavior is defined, not modeled approximately, by
abstract rules. When an if-statement follows a while-statement, there
is no need to study whether the if-statement will draw power from the
while-statement and thereby distort its output, nor whether it could
overstress the while-statement and make it fail.
Despite being built from simple parts, computer programs are incredibly
complex. The program with 100,000 parts is as complex as an
automobile, though far easier to design.
While programs cost substantially less to write, market and sell than
automobiles, the cost of dealing with the patent system will not be
less. The same number of components will, on the average, involve the
same number techniques that might be patented.
@heading The Danger of a Lawsuit
Under the current patent system, a software developer who wishes to
follow the law must determine which patents a program violates and
negotiate with each patent holder a license to use that patent.
Licensing may be prohibitively expensive, or even unavailable if the
patent is held by a competitor. Even ``reasonable'' license fees for
several patents can add up to make a project infeasible. Alternatively,
the developer may wish to avoid using the patent altogether; but there
may be no way around it.
The worst danger of the patent system is that a developer might find,
after releasing a product, that it infringes one or many patents. The
resulting lawsuit and legal fees could force even a medium-size company
out of business.
Worst of all, there is no practical way for a software developer to
avoid this danger---there is no effective way to find out what patents a
system will infringe. There is a way to try to find out---a patent
search---but searches are unreliable and in any case too expensive to
use for software projects.
@heading Patent Searches Are Prohibitively Expensive
A system with a hundred thousand components can use hundreds of
techniques that might already be patented. Since each patent search
costs thousands of dollars, searching for all the possible points of
danger could easily cost over a million. This is far more than the cost
of writing the program.
The costs don't stop there. Patent applications are written by lawyers
for lawyers. A programmer reading a patent may not believe that his
program violates the patent, but a federal court may rule otherwise. It
is thus now necessary to involve patent attorneys at every phase of
program development.
Yet this only reduces the risk of being sued later---it does not
eliminate the risk. So it is necessary to have a reserve of cash for
the eventuality of a lawsuit.
When a company spends millions to design a hardware system, and plans to
invest tens of millions to manufacture it, an extra million or two to
pay for dealing with the patent system might be bearable. However, for
the inexpensive programming project, the same extra cost is prohibitive.
Individuals and small companies especially cannot afford these costs.
Software patents will put an end to software entrepreneurs.
@heading Patent Searches Are Unreliable
Even if developers could afford patent searches, these are not a
reliable method of avoiding the use of patented techniques. This is
because patent searches do not reveal pending patent applications (which
are kept confidential by the Patent Office). Since it takes several
years on the average for a software patent to be granted, this is a
serious problem: a developer could begin designing a large program after
a patent has been applied for, and release the program before the patent
is approved. Only later will the developer learn that distribution of
the program is prohibited.
For example, the implementors of the widely-used public domain data
compression program @code{compress} followed an algorithm obtained from
the journal @cite{IEEE Computer}. (This algorithm is also used in
several popular programs for microcomputers, including @code{PKZIP}.)
They and the user community were surprised to learn later that patent
number 4,558,302 had been issued to one of the authors of the article.
Now Unisys is demanding royalties for using this algorithm. Although
the program @code{compress} is still in the public domain, using it
means risking a lawsuit.
The Patent Office does not have a workable scheme for classifying
software patents. Patents are most frequently classified by end
results, such as ``converting iron to steel;'' but many patents cover
algorithms whose use in a program is entirely independent of the purpose
of the program. For example, a program to analyze human speech might
infringe the patent on a speedup in the Fast Fourier Transform; so might
a program to perform symbolic algebra (in multiplying large numbers);
but the category to search for such a patent would be hard to predict.
You might think it would be easy to keep a list of the patented software
techniques, or even simply remember them. However, managing such a list
is nearly impossible. A list compiled in 1989 by lawyers specializing
in the field omitted some of the patents mentioned in this paper.
@heading Obscure Patents
When you imagine an invention, you probably think of something that
could be described in a few words, such as ``a flying machine with
fixed, curved wings'' or ``an electrical communicator with a microphone
and a speaker''. But most patents cover complex detailed processes that
have no simple descriptions---often they are speedups or variants of
well-known processes that are themselves complex.
Most of these patents are neither obvious nor brilliant; they are
obscure. A capable software designer will ``invent'' several such
improvements in the course of a project. However, there are many
avenues for improving a technique, so no single project is likely to
find any given one.
For example, IBM has several patents (including patent number 4,656,583)
on workmanlike, albeit complex, speedups for well-known computations
performed by optimizing compilers, such as register coloring and
computing the available expressions.
Patents are also granted on combinations of techniques that are already
widely used. One example is IBM patent 4,742,450, which covers ``shared
copy-on-write segments.'' This technique allows several programs to
share the same piece of memory that represents information in a file; if
any program writes a page in the file, that page is replaced by a copy
in all of the programs, which continue to share that page with each
other but no longer share with the file.
Shared segments and copy-on-write have been used since the 1960's; this
particular combination may be new as a specific feature, but is hardly
an invention. Nevertheless, the Patent Office thought that it merited a
patent, which must now be taken into account by the developer of any new
operating system.
Obscure patents are like land mines: other developers are more likely to
reinvent these techniques than to find out about the patents, and then
they will be sued. The chance of running into any one of these patents
is small, but they are so numerous that you cannot go far without
hitting one. Every basic technique has many variations, and a small set
of basic techniques can be combined in many ways. The patent office has
now granted at least 2000 software patents---no less than 700 in 1989
alone, according to a list compiled by EDS. We can expect the pace to
accelerate. In ten years, programmers will have no choice but to march
on blindly and hope they are lucky.
@heading Patent Licensing Has Problems, Too
Most large software companies are trying to solve the problem of patents
by getting patents of their own. Then they hope to cross-license with
the other large companies that own most of the patents, so they will be
free to go on as before.
While this approach will allow companies like Microsoft, Apple and IBM
to continue in business, it will shut new companies out of the field. A
future start-up, with no patents of its own, will be forced to pay
whatever price the giants choose to impose. That price might be high:
established companies have an interest in excluding future competitors.
The recent Lotus lawsuits against Borland and the Santa Cruz Operation
(although involving an extended idea of copyright rather than patents)
show how this can work.
Even the giants cannot protect themselves with cross-licensing from
companies whose only business is to obtain exclusive rights to patents
and then threaten to sue. For example, consider the New York-based
Refac Technology Development Corporation, representing the owner of the
``natural order recalc'' patent. Contrary to its name, Refac does not
develop anything except lawsuits---it has no business reason to join a
cross-licensing compact. Cadtrak, the owner of the exclusive-or patent,
is also a litigation company.
Refac is demanding five percent of sales of all major spread-sheet
programs. If a future program infringes on twenty such patents---and
this is not unlikely, given the complexity of computer programs and the
broad applicability of many patents---the combined royalties could
exceed 100% of the sales price. (In practice, just a few patents
can make a program unprofitable.)
@heading The Fundamental Question
According to the Constitution of the United States, the purpose of
patents is to ``promote the progress of science and the useful arts.''
Thus, the basic question at issue is whether software patents,
supposedly a method of encouraging software progress, will truly do so,
or will retard progress instead.
So far we have explained the ways in which patents will make ordinary
software development difficult. But what of the intended benefits of
patents: more invention, and more public disclosure of inventions? To
what extent will these actually occur in the field of software?
There will be little benefit to society from software patents because
invention in software was already flourishing before software patents,
and inventions were normally published in journals for everyone to use.
Invention flourished so strongly, in fact, that the same inventions were
often found again and again.
@heading In Software, Independent Reinvention Is Commonplace
A patent is an absolute monopoly; everyone is forbidden to use the
patented process, even those who reinvent it independently. This policy
implicitly assumes that inventions are rare and precious, since only in
those circumstances is it beneficial.
The field of software is one of constant reinvention; as some people
say, programmers throw away more ``inventions'' each week than other
people develop in a year. And the comparative ease of designing large
software systems makes it easy for many people to do work in the field.
A programmer solves many problems in developing each program. These
solutions are likely to be reinvented frequently as other programmers
tackle similar problems.
The prevalence of independent reinvention negates the usual purpose of
patents. Patents are intended to encourage inventions and, above all,
the disclosure of inventions. If a technique will be reinvented
frequently, there is no need to encourage more people to invent it;
since some of the developers will choose to publish it (if publication
is merited), there is no point in encouraging a particular inventor to
publish it---not at the cost of inhibiting use of the technique.
@heading Overemphasis of Inventions
Many analysts of American and Japanese industry have attributed Japanese
success at producing quality products to the fact that they emphasize
incremental improvements, convenient features and quality rather than
noteworthy inventions.
It is especially true in software that success depends primarily on
getting the details right. And that is most of the work in developing
any useful software system. Inventions are a comparatively unimportant
part of the job.
The idea of software patents is thus an example of the mistaken American
preoccupation with inventions rather than products. And patents will
encourage this mistaken focus, even as they impede the development work
that actually produces better software.
@heading Impeding Innovation
By reducing the number of programmers engaged in software development,
software patents will actually impede innovation. Much software innovation
comes from programmers solving problems while developing software, not
from projects whose specific purpose is to make inventions and obtain patents.
In other words, these innovations are byproducts of software development.
When patents make development more difficult, and cut down on
development projects, they will also cut down on the byproducts of
development---new techniques.
@heading Could Patents Ever Be Beneficial?
Although software patents in general are harmful to society as a whole,
we do not claim that every single software patent is necessarily
harmful. Careful study might show that under certain specific and
narrow conditions (necessarily excluding the vast majority of cases) it
is beneficial to grant software patents.
Nonetheless, the right thing to do now is to eliminate all software
patents as soon as possible, before more damage is done. The careful
study can come afterward.
Clearly software patents are not urgently needed by anyone except patent
lawyers. The pre-patent software industry had no problem that was
solved by patents; there was no shortage of invention, and no shortage
of investment.
Complete elimination of software patents may not be the ideal solution,
but it is close, and is a great improvement. Its very simplicity helps
avoid a long delay while people argue about details.
If it is ever shown that software patents are beneficial in certain
exceptional cases, the law can be changed again at that time---if it is
important enough. There is no reason to continue the present
catastrophic situation until that day.
@heading Software Patents Are Legally Questionable
It may come as a surprise that the extension of patent law to software
is still legally questionable. It rests on an extreme interpretation of
a particular 1981 Supreme Court decision, @cite{Diamond vs.@:
Deihr}.@footnote{See ``Legally Speaking'' in @cite{Communications of the
ACM}, August 1990.}
Traditionally, the only kinds of processes that could be patented were
those for transforming matter (such as, for transforming iron into
steel). Many other activities which we would consider processes were
entirely excluded from patents, including business methods, data
analysis, and ``mental steps.'' This was called the ``subject matter''
doctrine.
@cite{Diamond vs.@: Deihr} has been interpreted by the Patent Office as
a reversal of this doctrine, but the court did not explicitly reject it.
The case concerned a process for curing rubber---a transformation of
matter. The issue at hand was whether the use of a computer program in
the process was enough to render it unpatentable, and the court ruled
that it was not. The Patent Office took this narrow decision as a green
light for unlimited patenting of software techniques, and even for the
use of software to perform specific well-known and customary activities.
Most patent lawyers have embraced the change, saying that the new
boundaries of patents should be defined over decades by a series of
expensive court cases. Such a course of action will certainly be good
for patent lawyers, but it is unlikely to be good for software
developers and users.
@heading One Way to Eliminate Software Patents
We recommend the passage of a law to exclude software from the domain of
patents. That is to say that, no matter what patents might exist, they
would not cover implementations in software; only implementations in the
form of hard-to-design hardware would be covered. An advantage of this
method is that it would not be necessary to classify patent applications
into hardware and software when examining them.
Many have asked how to define software for this purpose---where the line
should be drawn. For the purpose of this legislation, software should be
defined by the characteristics that make software patents especially
harmful:
@itemize @bullet
@item
Software is built from ideal infallible mathematical components, whose
outputs are not affected by the components they feed into.
Ideal mathematical components are defined by abstract rules, so that
failure of a component is by definition impossible. The behavior of any
system built of these components is likewise defined by the consequences
of applying the rules step by step to the components.
@item
Software can be easily and cheaply copied.
@end itemize
Following this criterion, a program to compute prime numbers is a piece
of software. A mechanical device designed specifically to perform the
same computation is not software, since mechanical components have
friction, can interfere with each other's motion, can fail, and must be
assembled physically to form a working machine.
Any piece of software needs a hardware platform in order to run. The
software operates the features of the hardware in some combination,
under a plan. Our proposal is that combining the features in this way
can never create infringement. If the hardware alone does not infringe
a patent, then using it in a particular fashion under control of a
program should not infringe either. In effect, a program is an
extension of the programmer's mind, acting as a proxy for the programmer
to control the hardware.
Usually the hardware is a general purpose computer, which implies no
particular application. Such hardware cannot infringe any patents
except those covering the construction of computers. Our proposal means
that, when a user runs such a program on a general purpose computer, no
patents other than those should apply.
The traditional distinction between hardware and software involves a
complex of characteristics that used to go hand in hand. Some newer
technologies, such as gate arrays and silicon compilers, blur the
distinction because they combine characteristics associated with
hardware with others associated with software. However, most of these
technologies can be classified unambiguously for patent purposes, either
as software or as hardware, using the criteria above. A few gray areas
may remain, but these are comparatively small, and need not be an
obstacle to solving the problems patents pose for ordinary software
development. They will eventually be treated as hardware, as software,
or as something in between.
@heading What You Can Do
One way to help eliminate software patents is to join the League for
Programming Freedom. The League is a grass-roots organization of
programmers and users opposing software patents and interface
copyrights. (The League is not opposed to copyright on individual
programs.) Annual dues for individual members are $42 for employed
professionals, $10.50 for students, and $21 for others. We appreciate
activists, but members who cannot contribute their time are also
welcome.
To contact the League, phone (617) 243-4091, send Internet mail to
the address @code{league@@prep.ai.mit.edu}, or write to:
@group
@display
League for Programming Freedom
1 Kendall Square #143
PO Box 9171
Cambridge, MA 02139
@end display
@end group
In the United States, another way to help is to write to Congress. You
can write to your own representatives, but it may be even more effective
to write to the subcommittees that consider such issues:
@display
House Subcommittee on Intellectual Property
2137 Rayburn Bldg
Washington, DC 20515
@group
Senate Subcommittee on Patents, Trademarks and Copyrights
United States Senate
Washington, DC 20510
@end group
@end display
You can phones your representatives at (202) 225-3121, or write to them
using the following addresses:
@display
Senator So and So
United States Senate
Washington, DC 20510
Representative Such and Such
House of Representatives
Washington, DC 20515
@end display
@heading Fighting Patents One by One
Until we succeed in eliminating all patenting of software, we must try
to overturn individual software patents. This is very expensive and can
solve only a small part of the problem, but that is better than nothing.
Overturning patents in court requires prior art, which may not be easy
to find. The League for Programming Freedom will try to serve as a
clearing house for this information, to assist the defendants in
software patent suits. This depends on your help. If you know about
prior art for any software patent, please send the information to the
League at the address given above.
If you work on software, you can personally help prevent software
patents by refusing to cooperate in applying for them. The details of
this may depend on the situation.
@heading Conclusion
Exempting software from the scope of patents will protect software
developers from the insupportable cost of patent searches, the wasteful
struggle to find a way clear of known patents, and the unavoidable
danger of lawsuits.
If nothing is changed, what is now an efficient creative activity will
become prohibitively expensive. To picture the effects, imagine if each
square of pavement on the sidewalk had an owner, and pedestrians
required a license to step on it. Imagine the negotiations necessary to
walk an entire block under this system. That is what writing a program
will be like if software patents continue. The sparks of creativity and
individualism that have driven the computer revolution will be snuffed
out.
@bye
- Raw text -