RickL@samson.cadr.amis.com (Rick Lathrop) (08/08/90)
Date: Fri, 3 Aug 90 00:45:52 EDT
From: rms@ai.mit.edu
[The US Mail address of the League for Programming Freedom is:]
1 Kendall Sq #143
PO Box 9171
Cambridge MA 02139
But even better is to pass out League literature to the people you are
working with--as many of them as possible.
OK, good idea. I am forwarding your reply around several places.
For the record, The League for Programming Freedom was founded by
Richard Stallman (Emacs inventor and McArthur "Genius" Grant winner),
and includes as board, officers or members: John McCarthy (Lisp inventor
and co-founder of AI); Marvin Minsky (frames inventor and co-founder of
AI); Patrick Winston (director of the MIT AI Lab); Guy L. Steele, Jr.
(Common Lisp); a list of distinguished individuals too numerous to
mention; and in their footsteps myself (your humble scribe). We share a
common concern with the legal precedents our profession in this decade
will endow to the next millenium.
-=*=- Rick Lathrop
p.s. Standard disclaimer: As always, I speak only for myself, and not
for any of the institutions with which I may be affiliated.
p.p.s. Some of the biologists on some of the forwarded networks may
wonder how issues of software legalism relate to them. The answer is
that it will have a substantial impact on the programs they will be able
to run, throughout their entire professional careers.
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.
Fight "Look and Feel" Lawsuits
Join the League for Programming Freedom
The League for Programming Freedom is an organization of people who
oppose the attempt to monopolize common user interfaces through "look
and feel" copyright lawsuits. Some of us are programmers, who worry
that such monopolies will obstruct our work. Some of us are users,
who want new computer systems to be compatible with the interfaces we
know. Some are founders of hardware or software companies. Some of
us are professors or researchers, including John McCarthy, Marvin
Minsky, Guy L. Steele, Jr., and Patrick Winston.
"Look and feel" lawsuits aim to create a new class of
government-enforced monopolies broader in scope than ever before.
Such a system of user-interface copyright would impose gratuitous
incompatibility, reduce competition, and stifle innovation.
We in the League hope to prevent these problems by preventing
user-interface copyright. The League is not opposed to copyright
law as it was understood until 1986--copyright on particular
programs. Our aim is to stop changes in the copyright system which
would take away programmers' traditional freedom to write new
programs compatible with existing programs and practices.
The League for Programming Freedom will act against the doctrine
behind look-and-feel suits by any means consistent with the law and
intellectual liberty. We will write editorials, talk with public
officials, file amicus curiae briefs with the courts, and boycott
egregious offenders. On May 24th, 1989, we picketed Lotus
headquarters on account of their lawsuits against competitors,
stimulating widespread media coverage for the issue. If you have
other ideas, please suggest them.
The League is also opposed to software patents, potentially even more
dangerous than look-and-feel copyright. Patents threaten to make
every design decision in software development a chance for a lawsuit.
However, there is no way we can get rid of them except by organizing
to make Congress hear our voice.
Unless new forms of monopolistic practices arise, these are the only
issues that the League plans to act on.
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
influence the courts, the legislators, and the people. You won't get
anything personally for your dues--except for the freedom to write
programs. The League is a non-profit corporation, but because it is a
lobbying organization, your contributions may not be tax-deductible.
We also accept corporate (nonvoting) members; please phone or write
for more information.
The League needs both activist members and members who only pay their
dues.
If you have any questions, please write to the League or phone
(617) 243-4091. Or send email to league@prep.ai.mit.edu.
Richard Stallman, President
Chris Hofstader, Secretary
Denis Filipetti, Treasurer
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
(Overseas, calculate the equivalent in your currency rather than
writing a check in US dollars.)
Your name:
Your address, where we should write to you for elections and such:
The company you work for, and your position:
Your phone numbers (home, work or both) and 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; your support
as a member is helpful nonetheless.)
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
@center @titlefont{Against User Interface Copyright}
@sp 1
@center The League for Programming Freedom
In the past few years, a few companies have begun to sue others
for following what used to be standard practice in the computer
field: implementing programs that are compatible with the competition.
These plaintiffs claim to have a copyright on the user interface
of a program---something unheard of before 1986.
In June 1990, Lotus won a suit against Paperback Software, a small
company that implemented a spreadsheet that talks to the user in the
same terms used by 1-2-3; they immediately went on to sue Borland about
Quattro, a spreadsheet whose usual interface has only a few similarities
to 1-2-3, claiming that these similarities in keystroke sequences and/or
the ability to customize the interface to emulate 1-2-3 are enough to
infringe.
Even 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. The Xerox lawsuit was
dismissed because of the length of time that had elapsed since the
release of the Macintosh system, but a monopoly of unprecedented scope
could still result from this suit if the Xerox appeal is successful.
@heading What Is a User Interface?
The user interface of a program is the way in which you communicate
with it. Other machines also have user interfaces. For example, the user
interface of a typewriter is a collection of keys corresponding to
letters, digits, and punctuation, and arranged in a well-known order.
The user interface of a car includes a steering wheel for turning and
pedals to speed up and slow down, plus a lever to signal turns, etc.
In the case of a machine which is a computer program, the interface
includes that of the computer---its keyboard, screen and mouse---plus
those aspects specific to the program. Those typically include the
choice of commands, menus and programming language, and the way your
data is presented on the screen.
User interface copyright would mean a monopoly on a user interface.
In the example of the typewriter, this would mean that each
manufacturer would have to arrange the keys in a different order.
@heading The Purpose of Copyright
In any discussion of what copyright law ought to mean, we must start
by noting its purpose.
In the United States, the Constitution says that the purpose 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.''
@refill
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 it helps the public more than it costs the
public.
The spirit of individual freedom must, if anything, incline us even
less to accept such a monopoly. So if either the Supreme Court or the
principle of freedom is our guide, we have to ask: what value does
user interface copyright offer the public---and what price would we
have to pay for it?
According to Infoworld magazine (mid January 1989), computer users in
general have considered this question and reached a consensus: they
expect user interface copyright to be harmful for them. If we believe
that the users should determine how their interests are to be served,
the issue is already settled. But so as not to take their word for it,
let's now investigate how much good and harm user interface copyright
would do in various ways.
@heading Is More Incentive 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 a few years ago, user interface copyright was unheard of. The
entire development of the computer industry took place under a system
where imitating a user interface was standard practice, and lawful. And
it was under this system that today's plaintiffs made their decisions to
develop their products. When faced with the choice in actuality, these
developers decided that they did, indeed, have ``enough incentive''.
Everyone was free to imitate these interfaces, but this did not prevent
most of them from being successful and producing a large return on the
investment. In fact, they were so successful that they became de-facto
standards. (The Xerox Star was not successful, but was not imitated;
users simply did not like it.)
Even supposing that interface copyright would increase the existing
incentive, this does not mean that it will lead to much additional
improvement in user interfaces. The existing incentive is so great that
it may well suffice to motivate everyone who has an idea worth
developing. Then the change would only increase the price of these
improvements. Once you suck a bottle dry, more suction won't get more
out of it.
@heading ``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.
One problem with this idea is that it won't work. It is no coincidence
that today's interface copyright plaintiffs are large, established
companies. The effect of user interface copyright is crushing when the
interface is widely known---an effective standard. However, a small
company is vulnerable when their product is little used, and its
interface is little known. In this situation, user interface copyright
won't make much difference.
Thus, imagine that a small company with 10,000 customers is afraid that
a large company will produce a compatible product and use their other
advantages to take over the market. The large company may believe there
is a potential market of a million users that the small company has not
reached. Suppose that the small company tries to stop this with
user interface copyright, forcing the large company to make the new
product incompatible. What effect will this have?
Not much. Probably only 20,000 potential customers already know the
interface used by the small company. The other 970,000 potential
customers will see no disadvantage in the incompatibility with a product
they have never learned to use. So they will buy from the large company
anyway.
What's more, the interface copyright tactic will begin to backfire for
the small company once the large company's product becomes an effective
standard. Then even people who know about the small company and have
some reason to prefer them will be likely to choose the standard
interface instead. Now the small company will need to offer a
compatibility mode---but, due to user interface copyright, this will not
be allowed.
Instead of supporting monopolistic measures, small companies would be
wiser to rely on their own inherent advantages: large companies have
high inertia, high overhead, and are more cautious.
@heading What Will Interface Copyright Cost the Public?
So much for the value of interface copyright; what about the cost?
Computer user interfaces will be less convenient and more incompatible.
One cost we can be sure of is that future user interfaces will be less
widely used by developers, because most developers will not be allowed
to use them. We will also lose much of the usefulness of the
important interface concepts of the past decade. The few systems
permitted to use them will be more expensive due to the lack of
competition---a windfall for a few manufacturers, but bad for the
public at large.
But this is not the only cost. 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 more of this
sort of ``interface development''. The result will be greater
incompatibility between computer systems---exactly what the user does
not want.
These ``improved'' interfaces may be slightly better or slightly worse
if considered abstractly; but for the users who have already learned
to use one well-known interface, they are inevitably worse, because
they require retraining.
Even an intrinsically superior interface may be unacceptable for the
users due to incompatibility. For example, the Dvorak keyboard,
invented several decades ago, enables a typist to type much faster and
more accurately than is possible with the standard ``qwerty'' keyboard.
Nonetheless, few people use it. Already-trained typists don't know how.
New typists don't learn how, because they want to learn the standard
layout they can expect to find on most keyboards.
@heading Diversity in Interfaces is Not Desirable
Here we can see one of the implicit assumptions behind the system of
copyright, and why it does not apply to user interfaces. Copyright
was designed to encourage diversity; its details work toward this end.
Diversity is exactly what benefits the public when it comes to novels
and songs, and the other traditional domains of copyright. Readers
want new, different novels to be written so that there are more
different things to read. This is indeed a way to promote the art of
creative writing.
But this is not the way to promote the art of programming user
interfaces. Computer users regard diversity in interfaces as a price to
be paid, not as a measure of progress.
Thus, when proponents of interface copyright say that this will force
developers to find ways to vary the accepted interfaces, they are saying
that the users will suffer.
But that is not the whole of the problem. A technology cannot fully
mature without standardization of the modes of use, so that one can
confidently expect to operate any piece of equipment almost in one's
sleep. It is not for nothing that so much effort is devoted to the
development of industrial standards, including international symbols for
information that guides users of various systems including automobile
control panels. Anything which impedes standardization impedes the
social penetration of technology. User interface copyright operates
directly against the proliferation of computer use.
@heading 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
ostensibly to switch to the best of the known interfaces. In practice
they would still be unable to do so without forcing all their old
customers to learn to drive all over again. It would take decades for
the country to converge on a single interface, perhaps into the 21st
century.
@heading Who Invests in the User Interface?
The plaintiffs like to claim that user interfaces represent large
investments on their part.
In fact, designing the user interface of a computer program is usually a
small part of the investment in developing the program itself. The ones
who do make a large investment in the user interface are the users who
train to use it. Users have spent many times more on learning to use
1-2-3 than Lotus spent to develop the entire program, let alone what
Lotus spent develop the program's interface per se.
Therefore, if investment justifies owning the interface, it is the
users who should be the owners. And they should be able to permit
everyone to clone it, as they would prefer to do.
@heading Discrimination Against Sharing of Software
User interface copyright discriminates against freely redistributable
software, such as freeware, shareware and public domain software.
For a proprietary program it @emph{may} be possible to license the
interface, if the owner is willing. But there is no way to do this for
programs that are freely redistributable---any means for collecting
royalties from the users for use of the interface is incompatible with
redistribution by them. Thus, in practice, licenses will not be
available for freely-redistributable software. The result will be a
growing body of interface techniques that are allowed in proprietary
software but forbidden in non-proprietary software.
This discrimination is harmful because non-proprietary software provides
several advantages to the public: users can customize it, improve it,
and study it to learn programming; they can also develop habits of good
citizenship by lawfully passing on copies to their friends.
Software developers who choose to encourage redistribution are choosing
to serve the public fully rather than only themselves. Today such
public spirit is scarcer than innovation. It does not make sense to
encourage innovation by thwarting public spirit.
@heading The Fear Factor
The scope of interface copyright is so wide and vague 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 danger will be increased because the actual, de facto scope of
interface copyright will be wider than supposedly intended. This is
due to the practice of intimidation.
When offered a choice between paying royalties and being sued, most
businessmen choose to pay, even if they would probably win the case.
They know that customers and investors may avoid them because of the
suit, so that an eventual victory will come years too late to save
them from great loss or even bankruptcy. They speak of suits ``putting
their money in jail.'' They prefer the certainty of a payment they can
bear, even if it is unjust.
This phenomenon is well known, and some companies take advantage of it
by threatening to sue when they know they don't have a real case.
If patents are any guide, intimidation will be widespread in the area of
interface copyright. @w{G. Gervaise} Davis (an attorney specializing in the
field) estimates that 90% of all recent software patents would be
overturned in court, if anyone dared to challenge them. These patents
are part of a strategy of intimidation; they were filed in order to gain
a position for intimidation.
@heading Barrier to Evolution
Despite the high and many-fold social cost of user interface
copyright, the reader may still feel that it must have some beneficial
effect on progress in user interfaces, however minuscule. However,
interface copyright may actually retard progress, because of the
evolutionary nature of interface development.
Fully fleshed-out user interfaces schemes don't often arise as tours de
force from the minds of isolated masters. They result from repeated
implementations, by different groups, each learning from the successes
and failures 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 ideas that we
ought to encourage are most often ideas for 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.
@heading Evolution vs. Compatibility
The careful reader will now notice an apparent contradiction between
the usefulness of evolutionary growth and the undesirability of
incompatible changes. Why aren't the evolutionary changes rejected
by users who do not want any change?
To some extent, they are rejected. For this reason, developers often
try to satisfy both goals. They make changes that are
upward-compatible, or change only a small portion of the 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. This is an upward-compatible change.
When complete upward-compatibility is impossible, developers still strive
for as much compatibility as is possible given the improvement to be
made. This reduces the retraining cost for the given amount of benefit.
However, such partial changes as this would not be permitted by copyright
law. If any significant portion of the new interface were the same as a
copyrighted interface, the new interface would be illegal.
@heading What Do Interface Designers Think?
At the 1989 ACM Conference on Computer-Human Interaction, Professor
Samuelson of Emory School of Law presented a debate on the 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 forms of user interface
copyright, in most cases by 4 to 1. When they were asked whether user
interface copyright would harm or help the field, on a scale from 1 to
5, the average answer was 1.6. For the full results, see the May 1990
issue of the Communications of the ACM.
The advocates of user interface copyright have a habit of trying to sell
their scheme as a method of providing 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, Anyway?
Many organizations talk about aiming to have a major influence in
shaping the world. The way to have this influence is to encourage
others to imitate what you do: if your way of doing things is appealing
enough to draw the world after you, then you can shape it.
If, on the contrary, you create obstacles to drive others away from your
path, eventually they will succeed, leaving you in irrelevant isolation,
no matter how inspiring your way might otherwise have been.
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 public resentment, and eventually drives customers to try
to escape. In the long run, this is not the way to succeed.
@heading Conclusion
We have seen that monopolies on user interfaces do not serve the users
and do not ``promote the progress of science and the useful arts.'' It
follows that user interfaces ought to be the common property of all, as
they undisputedly were until a few years ago.
@heading What We Can Do
@comment Feel free to delete this section when sending a copy
@comment to a politician
@itemize @bullet
@item
Don't buy from Xerox, Lotus, Apple or Ashton-Tate. Buy from their
competitors or especially from the defendants they are suing.
@item
Don't own stock in these companies.
@item
Don't develop software to work with the systems made by these companies.
@item
Port your existing software to competing systems, so that you encourage
users to switch.
@item
Above all, don't work for the ``look and feel'' plaintiffs, and don't
accept contracts from them.
@item
Join the League for Programming Freedom and participate in further
activities. You can phone the League at (617) 243-4091, or send
electronic 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
The League is a grass-roots organization of programmers and users
dedicated to preserving the freedom to develop software that does what
users want. The League opposes software patents and user interface
copyrights, and advocates a return to the legal system for software that
existed a decade ago.
Annual dues for individual members are $42 for employed professionals,
$10.50 for students, and $21 for others. We appreciate activists, but
members who have no free time to contribute are also welcome.
@item
Tell your friends and colleagues about this issue and how it threatens
to ruin the computer industry. Ask them to join the League.
@item
In the United States, 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
Senate Subcommittee on Patents, Trademarks and Copyrights
United States Senate
Washington, DC 20510
@end display
You can write to your own representatives 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
You can phone senators and representatives at (202) 225-3121.
@item
In Europe, there is no user interface copyright as of now, but the
European Commission is proposing to institute it. Express your
opposition by writing to:
@display
Jean-Francois Verstrynge
DG 3/D/4
Commission of the European Communities
200 Rue de la Loi
1049 Bruxelles
BELGIUM
@end display
Also write to your own representative to the European Parliament.
@end itemize
@bye
\input texinfo @c -*-texinfo-*-
@comment %**start of header
@setfilename patents.info
@settitle Patents draft: @today{}
@comment %**end of header
@sp 7
@center @titlefont{Against Software Patents}
@center (draft)
@sp 2
@center The League for Programming Freedom
Software patents threaten to devastate America's computer industry.
Newly-granted software patents are being used to attack companies such
as the Lotus Development Corporation and Microsoft for selling programs
that they have independently developed. Soon new companies may be
barred from entering the software arena, because the cost of licensing
the dozens of patents necessary for a major program will make such a
project economically impossible.
As programmers, we believe that if the United States Patent and
Trademark Office continues to grant software patents, we will soon be
effectively forbidden from writing programs that are useful.
@heading The Patent System and Computer Programs
The framers of the 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 the use of the invention. 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 let them use it.
Patents do not cover specific programs: instead, they cover particular
techniques that are used to build programs, or particular features that
programs offer. Once a technique or feature is patented, it may not be
used in another program without the permission of the
patent-holder---even if it is implemented in a different way. Since a
program typically uses many techniques and provides many features, it
can infringe many patents at once.
Until recently, patents were simply not used in the field of software.
Software developers would copyright individual programs, or make them
trade secrets.
Copyright was traditionally understood to cover the particular 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 prohibiting the development of
new programs by others.
But this scheme of things is no more. Software patents became legal in
the U.S. in 1981, and now enough time has elapsed for numerous patents
to be approved.
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 very difficult time with
computer software. The Patent Office refuses 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
which have been previously used or are 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, others seemed
insufficiently general. Complicated assemblages of techniques have
often been kept secret.
And what is obvious to a programmer is frequently not obvious to a
patent examiner, many of whom view innovations in computer science the
same way as they see innovations in chemistry or biology. Computer
scientists know many techniques that can be generalized to widely
varying circumstances. Based on patents that have been awarded, the
Patent Office seems to believe that each separate use of a technique is
a candidate for a patent.
For example, Apple has been sued because the Hypercard program violates
patent number 4,736,308, a patent that describes nested scrollable
objects: windows that can scroll, containing tables that can
individually scroll, containing items that can individually scroll.
These three types of scrolling were all in use at the time that patent
number 4,736,308 was applied for, but combining them is now illegal.
Many well-known and widely used techniques have been patented.
Unfortunately, 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 for more than 10 years before the patent was
granted have been upheld by federal courts.
For example, the technique of using exclusive-or to write a cursor onto
a screen is well known, and has been used for decades. (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 used in just a few lines of program, and a clever high
school student might well reinvent it. But this, as well as other
important graphics techniques, is covered by patent number 4,197,590,
which has been upheld twice in court.
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.)
Currently all companies who have developed spreadsheet programs are
being sued because of a 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. This technique is very similar to the old artificial
intelligence techniques of antecedent reasoning and constraint
propagation, but we cannot rely on the courts to overturn the patent on
these grounds.
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 them void.
However, this is not the extent of the problem. Computer programming is
fundamentally different from the other fields that the patent system
previously covered. As a result, even if the patent system were fixed
to operate ``as intended'' for software, it would still largely wipe out
the industry it is ostensibly designed to encourage.
@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 a hundred thousand
components might be fifty thousand lines long and could be written by
two good programmers in a year. The equipment needed for this costs
less than ten thousand dollars; the only other cost would be the
programmers' own living expenses while doing the job. The total
investment would be less than a hundred thousand dollars. If done
commercially in a large company, it might cost twice that. By contrast,
an automobile typically contains under a hundred thousand 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 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 inserted in their place in the
machinery, and it must be possible to gain access to them to test or
replace them.
Moreover, each of the components in a hardware design is likely to
affect the behavior of many others. Therefore, is it very hard to
figure out 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 merely modeled approximately, by
abstract rules. When you write an if-statement after a while-statement,
you don't have to worry that the if-statement will draw power from the
while-statement and thereby distort its output, nor that it will
overstress the while-statement and make it fail.
Despite the fact that they are built from simple parts, computer
programs are incredibly complex. The program with fifty thousand lines
probably has a hundred thousand parts, making it 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 is not less.
The same number of components will, in general, be likely to involve the
same number of possibly-patented techniques.
@heading What Is ``Obvious''?
The patent system will not grant or uphold patents that are judged to be
``obvious.'' However, the standard of obviousness that the patent
system has developed in other fields is inappropriate to the software
field.
Patent examiners are accustomed to considering even small, incremental
changes as deserving new patents. For example, the famous
@cite{Polaroid vs.@: Kodak} case turned 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 far faster than people in other
disciplines, because the medium of programming is more tractable. So
they are trained to generalize solution principles from one problem to
another. One such generalization is that a procedure can be repeated
within itself, a process known as nesting. Nesting in software is
obvious to computer programmers---but the Patent Office did not think
that it was obvious when it granted the patent on nested scrolling, for
which Apple was sued.
Cases such as this cannot be considered errors. The patent system is
functioning in software just as it does in other fields---but with
software, the result is outrageous.
@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 saw a point in writing
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''. This
technique is used when there are overlapping windows; the contents of a
window that is partly hidden are saved in off-screen memory, so they can
be put back quickly on the screen if the obscuring window disappears (as
often happens).
In fact, the technique of backing store was used in an earlier MIT
project, the Lisp Machine System, before AT&T applied for the patent.
But the Lisp Machine developers did not publish anything mentioning the
use of backing store
until the
programmers' reference manual was written some years later.
They expected that any window system developer would have the same idea,
given that the memory of the computer was large enough to make the idea
practical. (Earlier window systems, such as those at Xerox, did not use
backing store because the computers in use had insufficient memory space
to spare any for this purpose.)
Without a publication, the use of backing store in the Lisp Machine
System may not count as prior art to defeat the patent. So the AT&T
patent may be enforceable, 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.@footnote{They are being
threatened by Cadtrak as well.} The X Windows Project was intended to
develop a window system that all developers could use freely. Because
of software patents, this public service goal seems to have been
thwarted.
@heading The Danger of a Lawsuit
Under the current patent system, a software developer who wishes to
follow the law must determine which patents his program violates and
negotiate with each patent holder a license to use that patent.
Licensing may be prohibitively expensive, as in the case when the patent
is held by a competitor. Even ``reasonable'' license fees for several
patents can add up to make a project unfeasible. Alternatively, the
developer may wish to avoid using the patent altogether; unfortunately,
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 such searches are unreliable and in any case too expensive to
use for software projects.
@heading Patent Searches Are Prohibitively Expensive
In a system with a hundred thousand components, there can easily be
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.
But 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 such involvement 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.
In particular, individuals and small companies cannot afford these
costs. Software patents will put an end to software entrepreneurs.
@heading Patent Searches Are Unreliable
Even if companies could afford the heavy cost of patent searches, they
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 patent to be
granted, this is a serious problem: a company 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 that company
find out whether its profits will be confiscated.
For example, the implementors of the widely-used public domain program
@code{compress} followed an algorithm obtained from the journal,
@cite{IEEE Computer}. 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 is still in the public domain,
using it means risking a lawsuit. And implementing the algorithms
found in the journals is no longer safe.
In addition, the Patent Office does not have a workable scheme for
classifying software patents. Patents are most frequently classified by
the activity they are used in, 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 in practice. The patent office has now granted
more than 2000 software patents. In 1989 alone, 700 patents were
issued. We can expect the pace to accelerate.
When you think of inventions, you probably call to mind revolutionary
inventions such as the telephone or magnetic core memory. This is not
the standard that the patent system uses, however. What we would
consider a minor cleverness or variation or combination of existing
techniques, they consider patentable. This leads to a profusion of
obscure patents.
Any capable software designer will ``invent'' several such
improvements in the course of a project, and will say that they are
straightforward---hardly inventions at all. However, the number of
avenues for such improvement is very large, so no single project is
likely to find any given one. Therefore, the Patent Office is not
likely to classify them as obvious. As a result, IBM has several
patents (including 4,656,583) on certain fairly straightforward,
albeit complex, speedups for well-known computations performed by
optimizing compilers, such as computing the available expressions and
register coloring.
Patents are also granted on combinations of techniques that are
already well known and in use. One example is IBM patent 4,742,450,
which covers ``shared copy-on-write segments.'' This is a technique
that 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 are very old techniques; this
particular combination may be new as an advertised 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.
These sorts of patents are like land mines: your chances of running into
any one of them are small, but soon there will be thousands of them.
Even today it is hard to keep track of them, and a recent list published
by lawyers specializing in the field omitted some of these IBM patents.
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
all the other companies and be free to go on as before.
While this approach will allow companies like Microsoft, Apple and IBM
to continue business, it will shut future companies out of the
marketplace. A future start-up, with no patents of its own, will have
no choice but to meet whatever conditions the giants choose to impose.
And that price might be extremely high: companies currently in the
market have an incentive to keep out 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 a system of industry-wide cross-licensing will not protect the
software industry from companies whose only business is to buy patents
and then sue people for license fees. For example, the New York-based
REFAC Technology Development Corporation recently bought the rights to
the ``natural order recalc'' patent, solely so that REFAC could sue
Lotus, Microsoft and other companies selling spread-sheet programs.
Contrary to its name, REFAC does not develop anything except lawsuits.
It has no financial incentive to join a cross-licensing compact. The
exclusive-or patent is owned by another such litigation company,
Cadtrak, which is now suing Western Digital.
REFAC is demanding five percent of sales of all major spread-sheet
programs. If some future program infringes on twenty such patents---and
this is not at all unlikely, given the complexity of a computer program
and the specificity of patents that have been recently issued---that
program will never be used.
To get a picture of the effects for yourself, imagine if each square of
pavement on the sidewalk had its owner, and you had to negotiate a
license to step on it. Imagine trying to walk the entire length of a
block under this system. That is what writing a program will be like if
software patents are allowed to proliferate.
@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 whether they will instead hold progress back.
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; anyone who uses the patented
technique can be stopped, even if it was independently reinvented.
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.
As programmers, we solve many problems each time we develop a program.
In the past, we would publish the important solutions in journals, and
forget the rest. All of these solutions are likely to be reinvented
frequently as additional people tackle similar problems and try to do a
good job.
Today, however, many of these specialized solutions are being patented.
If you then rediscover it in the course of your work, you are headed for
a lawsuit that you cannot anticipate.
Meanwhile, the prevalence of independent reinvention negates the usual
justification for patents. Patents are intended to encourage the
development of 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 it merits publication), there is no point in
encouraging a particular inventor to do so---and certainly not at such
a high price.
@heading Could Patents Ever Be Beneficial?
Although software patents are in general are harmful to society as a
whole, we do not claim that every single software patent is necessarily
harmful. It is possible, though not certain, that careful study would
show that under certain specific and narrow conditions (necessarily
excluding the vast majority of cases) it would be 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.
This 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.
Clearly software patents are not urgently needed by anyone except
patent lawyers. The pre-patent software industry had no problem that
patents solved; there was no shortage of invention, and no shortage of
investment.
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 Inventions Are Not the Important Thing
Many observers of US and Japanese industry have noted that one of the
reasons Japanese are better at producing quality products is that they
assign greater importance to incremental improvements, convenient
features and quality rather than to 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 small part
of the process.
The idea of software patents is thus an example of the mistaken American
preoccupation with the big invention rather than the desirable product.
Patents will reinforce this misdirection of American attention.
Meanwhile, by presenting obstacles to competition in the important part
of software development, they will interfere with development of quality
software.
@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{This information comes from a paper being written by
Professor Samuelson of the Emory School of Law.}
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 did 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 what can be patented should be defined over decades by a
series of expensive court cases. Such a course of action will certainly
be good for the patent lawyers, but it is unlikely to be good for
software developers and users.
@heading One Way to Eliminate Software Patents
We recommend that Congress pass a law that excludes software from the
domain of patents. That is to say that, no matter what might be
patented, the patent 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 judging
them.
People often ask how it would be possible to define software for this
purpose---where the line would be drawn.
For the purpose of this legislation, software should be defined by
precisely the characteristics that make software patents harmful:
@itemize @bullet
@item
Software is built from ideal mathematical components, whose inputs are
clearly distinguished from their outputs.
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 to its components.
@item
Software can be easily and cheaply copied.
@end itemize
Thus, a program which computes prime numbers is a piece of software. A
mechanical device designed specifically to perform the same computation
would not be software, since the mechanical device might fail if it were
not properly oiled, and would have to be constructed out of physical
objects.
There are areas of design which are between hardware and software in
some ways: for example, gate arrays and silicon compilers. These will
fall on one side or the other of the line that is drawn. If the line is
drawn as proposed here, based on the needs of the field, there is reason
to hope that these will fall on the side that is best. However, these
in-between areas are comparatively small, and what really matters is to
solve the problem for the larger area of ordinary software as surely and
expeditiously as possible.
@heading What You Can Do
One way to help oppose software patents is to join the League for
Programming Freedom. The League is a grass-roots organization of
programmers and users dedicated to preserving the freedom to develop
software that does what users want. The League opposes software patents
and user interface copyrights, and advocates a return to the legal
system for software that existed a decade ago.
Annual dues for individual members are $42 for employed professionals,
$10.50 for students, and $21 for others. We appreciate activists, but
members who have no free time to contribute are also welcome.
You can phone the League at (617) 243-4091, send electronic mail to
@code{league@@prep.ai.mit.edu}, or write to:
@display
League for Programming Freedom
1 Kendall Square #143
PO Box 9171
Cambridge, MA 02139
@end display
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
Senate Subcommittee on Patents, Trademarks and Copyrights
United States Senate
Washington, DC 20510
@end display
You can write to your own representatives 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
You can phone senators and representatives at (202) 225-3121.
@heading Conclusion
Exempting software from the scope of patents will prevent the patent
system from turning an efficient creative activity into something that
is prohibitively expensive. Individual practitioners will be able to
continue work in their fields without expensive patent searches, the
struggle to find a way clear of patents, and the unavoidable danger of
lawsuits.
If this change is not made, it is quite possible that the sparks of
creativity and individualism that have driven the computer revolution
will be snuffed out.
@bye