Post Syndicated from Bradley M. Kuhn original http://ebb.org/bkuhn/blog/2010/06/30/bilski.html
Lots of people are opining about
the USA
Supreme Court’s ruling in the Bilski case. Yesterday, I participated
in
a oggcast
with the folks at SFLC. In that oggcast, Dan Ravicher explained most
of the legal details of Bilski; I could never cover them as well as he
did, and I wouldn’t even try.
Anyway, as a non-lawyer worried about the policy questions, I’m pretty
much only concerned about those forward-looking policy questions.
However, to briefly look back at how our community responded to this
Bilski situation over the last 18 months: it seems similar to what
happened
while the Eldred
case was working its way to the Supreme Court. In the months
preceding both Eldred and Bilski, there seemed to be a mass hypnosis that
the Supreme Court would actually change copyright law (Eldred) or patent
law (Bilski) to make it better for freedom of computer users.
In both cases, that didn’t happen. There was admittedly less of that
giddy optimism before Bilski as there was before Eldred, but the ultimate
outcome for computer users is roughly no different in both cases: as we
were with Eldred, we’re left back with the same policy situation we had
before Bilski ever started making its way through the various courts. As
near as I can tell from what I’ve learned, the entire “Bilski
thing” appears to be a no-op. In short, as before, the Patent
Office sometimes can and will deny applications that it determines are
only abstract ideas, and the Supreme Court has now confirmed that the
Patent Office can reject such an application if the Patent Office knows
. Nothing has changed regarding most
an abstract idea when it sees it
patents that are granted every day, including those that read on software.
Those of us that oppose software patents continue to believe that software
algorithms are indeed merely abstract ideas and pure mathematics and
shouldn’t be patentable subject matter. The governmental powers still
seems to disagree with us, or, at least, just won’t comment on that
question.
Looking forward, my largest concern, from a policy
perspective, is that the “patent reform” crowd,
who claim to be the allies of the anti-software-patent folks,
will use this decision to declare that the system works
.
Bilski’s patent was ultimately denied, but on grounds that leave us no
closer to abolishing software patents. Patent reformists will
say: Well, invalid patents get denied, leaving space for the valid
, they will say,
ones. Those valid onesdo and should include
lots of patents that read on software.But only the really good
, they will insist.
ideas should be patented
We must not yield to the patent reformists, particularly at a time like
this. (BTW, be sure to read
RMS‘ classic and still relevant essay,
Patent
Reform Is Not Enough, if you haven’t already.)
Since Bilski has given us no new tools for abolishing software patents,
we must redouble efforts with tools we already have to mitigate the
threat patents pose to software freedom. Here are a few suggestions,
which I think are actually all implementable by the average developer,
to will keep up the fight against software patents, or at least,
mitigate their impact:
- License your software using the
AGPLv3,
GPLv3,
LGPLv3,
or Apache-2.0.
Among the copyleft
licenses, AGPLv3
and GPLv3 offer the
best patent
protections; LGPLv3
offers the best among the weak copyleft
licenses; Apache
License 2.0 offers the best patent protections among the permissive
licenses. These are the licenses we should gravitate toward,
particularly since multiple companies with software patents are
regularly attacking Free Software. At least when such companies
contribute code to projects under these licenses, we know those
particular codebases will be safe from that particular company’s
patents. - Demand real patent licenses from companies, not mere
promises. Patent promises are not
enough0. The Free Software
community deserves to know it has real patent licenses from companies
that hold patents. At the very least, we should demand unilateral
patent licenses for all their patents perpetually for all
possible copylefted code (i.e., companies should grant, ahead of
time, the exact same license that the community would get if the
company had contributed to a yet-to-exist GPLv3’d
codebase)1. Note
further that some companies, that claim to be part of the
FLOSS community, haven’t even given the
(inadequate-but-better-than-nothing) patent promises.
For example,
BlackDuck holds a
patent related to FLOSS, but
despite saying
they would consider at least a patent promise, have failed to do
even that minimal effort. - Support organizations/efforts that work to oppose and end
software patents. In particular, be sure that the efforts
you support are not merely “patent reform” efforts hidden
behind anti-software patent rhetoric. Here are a few initiatives that
I’ve recently seen doing work regarding complete abolition of software
patents. I suggest you support them (with your time or dollars):- End Software
Patents (a project of
FSF), - FFII
(European-specific), and - APRIL
(France-specific).
- End Software
- Write your legislators. This never hurts. In the
USA, it’s unlikely we can convince Congress to change patent law,
because there are just too many lobbying dollars from those big
patent-holding companies (e.g., the same ones that wrote
those nasty
amicus
briefs
in Bilski). But, writing your Senators and Congresspeople once a year
to remind them of your opposition patents that read on software simply
can’t hurt, and may theoretically help a tiny bit. Now would be a good
time to do it, since you can mention how the Bilski decision convinced
you there’s a need for legislative abolition of software patents.
Meanwhile, remember, it’s even better if you show up at political
debates during election season and ask these candidates to oppose
software patents! - Explain to your colleagues why software patents should be
abolished, particularly if you work in computing. Software
patent abolition is actually a broad spectrum issue across the
computing industry. Only big and powerful companies benefit from
software patents. The little guy — even the little guy
proprietary developer — is hurt by software patents.
Even if you can’t convince your colleagues who write proprietary
software that they should switch to writing Free Software,
you can instead convince them that software patents
are bad for them personally and for their chances to succeed in
software. Share the film,
Patent
Absurdity, with them and then discuss the issue with them
after they’ve viewed it. Blog, tweet, dent, and the like about the
issue regularly. - (added 2010-07-01 on tmarble‘s
suggestion) Avoid products from pro-software-patent
companies. This is tough to do, and it’s why I didn’t call
for an all-out boycott. Most companies that make computers are
pro-software-patent, so it’s actually tough to buy a computer (or even
components for one) without buying from a pro-software-patent company.
However, avoiding the companies who are most aggressive with patent
aggression is easy: starting with avoiding Apple products is a good
first step (there are plenty of other reasons to avoid Apple anyway).
Microsoft would be next on the list, since they specifically use
software patents to attack FLOSS projects. Those are likely the big
two to avoid, but always remember that all large companies with
proprietary software products actively enforce patents, even if they
don’t file lawsuits. In other words, go with the little guy if you
can; it’s more likely to be a patent-free zone. - If you have a good idea, publish it and make sure the great
idea is well described in code comments and documentation, and that
everything is well archived by date. I put this one last on
my list, because it’s more of a help for the software patent
reformists than it is for the software patent abolitionists.
Nevertheless, sometimes, patents will get in the way of Free Software,
and it will be good if there is strong prior art showing that the idea
was already thought of, implemented, and put out into the world before
the patent was filed. But, fact is,
the “valid”
software patents with no prior art are a bigger threat to software
freedom. The stronger the patent, the worst the threat, because
it’s more likely to be innovative, new technology that we want to
implement in Free Software.
I sat and thought of what else I could add to this list that
individuals can do to help abolish software patents. I was sad that
these were the only five six things that
I could collect, but that’s all the more reason to do
these five six
things in earnest. The battle for software freedom for all users is not
one we’ll win in our lifetimes. It’s also possible abolition of
software patents will take a generation as well. Those of us that seek
this outcome must be prepared for patience and lifelong, diligent work
so that the right outcome happens, eventually.
0 Update: I
was asked for a longer write up on software patent licenses as
compared to mere “promises”.
Unfortunately, I
don’t have one, so the best I was able to offer
was the interview I did
on Linux Outlaws, Episode 102, about Microsoft’s patent
promise. I’ve also added a TODO to write something up more completely
on this particular issue.
1 I am not
leaving my permissively-license-preferring friends out of this issue
without careful consideration. Specifically, I just don’t think it’s
practical or even fair to ask companies to license their patents for
all permissively-licensed code, since that would be the same as
licensing to everyone, including their proprietary software
competitors. An ahead-of-time perpetual license to practice the
teachings of all the company’s patents under AGPLv3 basically makes
sure that code that’s eternally Free Software will also eternally be
patent-licensed from that company, even if the company never
contributes to the AGPLv3’d codebase. Anyone trying to make
proprietary code that infringed the patent wouldn’t have benefit of
the license; only Free Software users, distributors and modifiers
would have the benefit. If a company supports copyleft generally,
then there is no legitimate reason for the company to refuse such a
broad license for copyleft distributions and deployments.