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Free software and patentability of software
´ a
Jesus M. Gonz´ lez Barahona
GSyC, URJC
jgb@computer.org jgb@debian.org
ETUC affiliated organisations ICT meeting
Madrid, June 24th, 2004
1
c 2004 Jesus M. Gonzalez-Barahona.
Permission is granted to copy and distribute this document as a whole in
any medium if it is done verbatim and this note is preserved.
This document (or some other similar) is available at
http://sinetgy.org/jgb
c Jes´ s M. Gonz´ lez Barahona
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Outline 2
Outline
• Basics of libre (free, open source) software
• Some implications of libre software
• Software patents
• Software patents in Europe
• Libre software and software patents
c Jes´ s M. Gonz´ lez Barahona
u a Free software and patentability of software
There is a new guy in town 3
There is a new guy in town
• GNU/Linux, Apache, GNOME, KDE, OpenOffice, etc. are very impor-
tant, but...
• The really new thing is the libre software model:
– Unprecedented combination of collaboration and competition.
– Shift in emphasis from marketing to support and quality.
– Classical assumptions about intellectual propriety are questioned.
– End-users recover the control (instead of big software providers)
– A new model for a new (global, networked, connected) world?
• These years are showing feasibility (or unfeasibility) of the model.
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What is free / libre / open source software? 4
What is free / libre / open source software?
In short, libre software guarantees:
• Freedom of use (if you get it, you can use it)
• Freedom of distribution (if you get it, you can redistribute it)
• Freedom of study and modification (if you get it, you can modify it)
• Freedom of distribution of modifications (closing the loop)
Same applies to open source software.
To be able of modifying it, source code must be available.
Lots of licenses: GPL, LGPL, BSD/MIT style, NPL, etc.
c Jes´ s M. Gonz´ lez Barahona
u a Free software and patentability of software
Money and ethics 5
Money and ethics
Convergence of ethical and practical reasons
• Ethical reasons: stated by Richard Stallman and others in early 1980s
• Practical reasons: stated by Eric Raymond and others during 1990s
All in all, definitions with similar effect:
• Free Software Foundation definition of what is free software
• Open Source Initiative definition of “open source software”
http://www.fsf.org/philosophy/free-sw.html
http://opensource.org/docs/osd.html
c Jes´ s M. Gonz´ lez Barahona
u a Free software and patentability of software
The hacker ethics 6
The hacker ethics
• A hacker should contribute with his work to the community
• A hacker should be able of taking advantage of the work of other hack-
ers
• A hacker should be able of fixing and improving any program
• A hacker is proud of his code, and of others studying, using and im-
proving it
Not that different from science ethics.
c Jes´ s M. Gonz´ lez Barahona
u a Free software and patentability of software
Practical reasons 7
Practical reasons
• New development models (bazaar vs. cathedral, and hundreds of vari-
ations)
• Advantages of public scrutiny (many eyeballs available)
• Real competition in development and support
• Technical robustness vs. marketing
• New business models (eg: defiance of monopoly situations)
Market field more leveled for competitors
c Jes´ s M. Gonz´ lez Barahona
u a Free software and patentability of software
When libre software enters a new niche... 8
When libre software enters a new niche...
• It can become one of the first choices (GNU/Linux in operating sys-
tems, Apache in WWW servers, OpenOffice in office applications, etc.)
• It benefits from a lot of synergy (reuse of code, reuse of knowledge,
reuse of distribution channels, etc.)
• Users gain competitive advantage:
– Availability of source code makes improvements and customization
possible in large scale (by in-house or subcontracted teams).
– Standardization, but maintaining competition between providers.
– No more per-use licenses.
– Much more and better support (ensured by competition).
• Competition is the name of the game.
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Consequences for the software industry 9
Consequences for the software industry
If the libre software model is feasible enough, the software business will
change upside down:
• Traditional software “manufacturers” will have to reinvent themselves
completely (no more per-copy incomes).
• A whole new industry (based in support and libre development) will be
needed as libre software gains market acceptance.
• It allows for (and encourages) competition in support, and even in the
evolution of a piece of software.
• Users are benefited in several ways. Therefore, big pressure from end-
users (including big companies) to switch to libre software.
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Libre software for (large) end users 10
Libre software for (large) end users
• Libre software is not necessarily better or worse. It is just different
• In several niches, we have already excellent products and companies
supporting them.
• In many cases, it is the most cost-effective way of producing software.
• Special advantages when there is interest in long-term life cycles, ven-
dor independence, multiplatform support, adaption to evolving tech-
nologies.
• If a powerful enough user (or group of users) needs to drive the tech-
nology, this is probably the best way to go.
• Many things can be done to promote a competitive libre software indus-
try in a given niche. Many benefits are derived of such a promotion.
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In short: some general implications 11
In short: some general implications
• Cost: cost model deeply different of that with proprietary software
• Openess: can be modified, inspected, studied, openly, by collaborat-
ing communities
• Distribution: new channels, new methods
• Development: new and astounding development models
• Maintenance and support: real competition
• Local and regional effects: industrial fabric on TI, in fields and spe-
cialties unthinkable with other models
• Employment: better added value, great opportunities for SMEs, com-
bination of voluntary and paid work
c Jes´ s M. Gonz´ lez Barahona
u a Free software and patentability of software
Why not take advantage of libre software? 12
Why not take advantage of libre software?
Curious combination of two powerful forces:
• Competition (using the same code base)
• Cooperation (voluntary and involuntary)
Maybe a revolution for the IT sector (and for society) comparable to the
surge of Internet
c Jes´ s M. Gonz´ lez Barahona
u a Free software and patentability of software
Now, some words about patents 13
Now, some words about patents
• What is a patent?
• What is a software patent?
• Some hints on the economy of software patents
• Situation in the world, in Europe
• Impact on libre software
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What is a patent? 14
What is a patent?
• Monopoly of commercial exploitation about a technique (invention),
lasting for 20 years
• Exploitation licences can be sold (or not)
• Traditionally applied to industrial inventions (industrial propriety)
• Specifically excluded: algorithms and computer programs
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Why society grants patents? 15
Why society grants patents?
• To help investors to take risk, improving their profit opportunities:
– Legal (and private) monopoly
– Rights can be sold to third parties
• To get knowledge about the inventions: patent descriptions are public
• Should help to the technical progress in general
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What is patented by a software patent? 16
What is patented by a software patent?
Many wordings (e.g., “computer implemented inventions”) (?)
• What does a program performs (eg. business models)
• How does a program perform:
– How does a program reads inputs or how writes outputs
– How does a program interacts with other programs
Computer programs are already covered by intellectual propriety
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Some fundamental problems 17
Some fundamental problems
• Patent owners can abuse their monopoly... for 20 years
• There is no way of avoiding “bad” software patents: incremental im-
provements, everything obvious at the right time, in the right commu-
nity
• There is no difference between “publication of maps” and “distribution
of patented objects”
• Any given program can use tens, hundreds, even thousands of tech-
niques which could be patented
• Entrance barriers to “garage” companies
• Software industry has performed rather well in a world without software
patents (is it really a non-innovative industry?)
• Reinforcement of monopoly in a monopolistic industry
c Jes´ s M. Gonz´ lez Barahona
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Some hints on the economy of software patents 18
Some hints on the economy of software patents
• Small producers: little chances of benefits, many possible costs (due
to “touching” patents)
• Large producers: little chances of benefits, little costs (in general, due
to cross-licensing) except a third party is lucky (eg: Eolas vs. Microsoft)
• Patent trusts: many possible benefits, no cost (apart from those in their
regular business)
• Users (even developers of software for themselves): chances of pay-
ing, where are the benefits?
c Jes´ s M. Gonz´ lez Barahona
u a Free software and patentability of software
Situation in the world 19
Situation in the world
• In the 1970s, it was decided that software was to be covered by in-
tellectual propriety law (imagine the position of IBM in case it were
covered by industrial propriety law)
• During the 1980s, a process started in the US to extend patents to
software (ended in late 1990s)
• During the late 1990s, early 2000s, other countries do the same (Japan,
Australia, etc.)
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Situation in Europe 20
Situation in Europe
• European Patent Convention (EPC, not under the EU umbrella) ex-
clude “software as such” from patentability
• The European Patent Office (EPO, based on the EPC) has accepted
more than 30,000 software patents
• Some tries to change the EPC (in 2000)
• Proposal of a directive to introduce software patents in the EU (Euro-
pean Commission, 2002)
• Discussions in European Parliament (2003): amendments excluding
software patents
• Position by the Council (Irish presidency): even more radical than the
proposal by the Commission
• Now, probably second reading at the new Parliament
c Jes´ s M. Gonz´ lez Barahona
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Software patents and libre software 21
Software patents and libre software
• Generic impact in all the software industry
• Special impact on SMEs (many libre software companies are SMEs)
• Conflict on fundamentals: libre software promotes free dissemination
(and use) of knowledge
• No libre software project is going to get a patent licence for a fee
• Users of libre software could be sued
• Independent developers are in a difficult position to resist patent litiga-
tion (or even the threat of it)
c Jes´ s M. Gonz´ lez Barahona
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Some references 22
Some references
• European Working Group on Libre Software:
http://eu.conecta.it
• Open Sources (O’Reilly)
http://www.oreilly.com/catalog/opensources/
• FFII group on software patents:
http://swpat.ffii.org
• About 350,000 signatures against software patents in Europe:
http://petition.eurolinux.org
c Jes´ s M. Gonz´ lez Barahona
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