Stallman on the Harm of Patents
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Stallman: Just one of the reasons is that even a "competently" run system of software patents would be fatal for free software or open source, whichever we call it. If only the nontrivial new ideas are off limits for 20 years, that will be enough to keep us 20 years behind the times.
O'Reilly: This is certainly a compelling argument. I think that on balance, it is pretty obvious that patents are bad for the advancement of software. That being said, I still think that there's a difference between a patent that is bad because it has economic consequences that are contrary to the intentions of the patent system and a patent that is bad because it appropriates the work of others (who didn't think to file a patent claim but released it as part of the common heritage of the industry), or covers a very general and completely obvious or inevitable idea. You may be right that we should get rid of all software patents, but that may not be a battle we can win.
Stallman: On the contrary, we have a much better chance of winning this battle than of making even a slight improvement in the competence or the standards of the US Patent Office. The patent system has had absurdly low standards since at least 140 years ago, and the Supreme Court was unable to raise them.
However, just a few years ago a law was passed exempting surgery from patent law. Patents can still be granted for surgical procedures, but doctors cannot be sued for patent infringement for performing them. Exactly this sort of law is what we need to solve the software patent problem.
O'Reilly: I'm quite confident that if we can issue a wakeup call to the Patent Office and to some obvious abusers, that we can get some action on the frivolous patent issue.
I am confident that the Amazon patents will eventually be overturned in any case. Note: I am now less sure of that than I was when I wrote this.
Stallman: Do you know of reason to be confident of this outcome, other than that the idea is obvious? Past experience shows that that is not sufficient: courts have a history of upholding the most trivial patents. It is not just the patent office that applies low standards; the courts do also.
O'Reilly: You may well be right about that. Point well taken.
Stallman: If you don't know some special reason to expect this patent to be overturned, please don't tell the public they can count on the courts to solve this problem. Even if you do have one, please make it clear that it refers to this specific case only. Otherwise, readers of your article could easily come away feeling reassured that courts will sweep away all the absurd patents--and believing that they can relax because everything is ok.
O'Reilly: I don't have any special reason. You're right about that. My faith in common sense may be misplaced. However, it's clear that readers aren't going away reassured. They are going away angry. We have had over 2500 people sign the petition in less than 18 hours, with twelve of those hours being from 6 pm last night to 6 am this morning.
Stallman: Meanwhile, I do like the letter you sent to Amazon. If you are their friends, offering them friendly advice to make a concession can work together with the condemnation from their enemies such as me.
O'Reilly: Yes. I do think it's wise not to paint them into a corner. I know when I tussled with Microsoft over their attempt to cripple TCP/IP back in 1996, I got all kinds of mail from people inside Microsoft saying "thanks for helping us to do the right thing." I'm sure that the same debate is raging inside the halls of Amazon today. It's easy to make a mistake in today's fast-paced, competitive world. It takes a big man to admit such a mistake. And I'm hoping that Jeff Bezos, Time's man of the year, is big enough to admit that he didn't think this through, and to change his mind about his patent strategy. What's good for Amazon isn't good for the web, and he needs to put the long term health of the system ahead of short term advantage against his competitors.
Stallman: Unfortunately, it looks like they are not listening. I just got this news today:
CNET News.com/AP: Amazon patents affiliate programs technology
Feb 27, 2000, 05:01 UTC"In a move that could shake up e-commerce, Internet retailer Amazon.com has patented a technology that lets other Web sites send it customers in exchange for a commission.
"These "affiliate programs" are commonly used by many sites, including Amazon competitors, to enhance sales. Amazon's possession of a patent on the technology could allow the company to prohibit others from using it, or Amazon could charge them a fee if they want to use it."
O'Reilly: Yes. I know about that, and referenced that patent too in the story. But they haven't yet made any moves to enforce that patent. The right thing to do is to assign these patents to the FSF or some other public-spirited body, or at the very create an open license, so that they are protected from other people laying claim to these ideas as their own, while retaining them as the common heritage of the web.
Because of the unsettled nature of the patent system, I can understand why a big company would feel the need to file "defensive" patents, lest someone else file first, and then keep them from using a common and obvious technique. What put Amazon over the line to me was that they took the further step of trying to keep competitors from using something as obvious as one-click ordering.
Stallman: I agree. It was Amazon's decision to use patents for aggression that led me to conclude that a state of war exists between our community and them. If they were to make a commitment to use their patents solely for self and mutual defense, there would be no remaining reason to criticize them.
But we should insist that they make a binding commitment to the policy before we are confident that they really mean it.
What do you think? Join the discussion in the O'Reilly Network Patents Forum.
More resources and articles can be found in the Patents DevCenter
