Subject: How do you convince IBM to oppose software patents? [was: EY invests in online patent exchange]
From: "Stephen J. Turnbull" <>
Date: Fri, 24 Sep 1999 16:23:48 +0900 (JST)

OK, so how do _you_ plan to convince IBM that software patents are
just plain bad for them?  Or the legislature that a few thousands of
gnat-like independent consultants are more important than the old
hippopotamus, IBM, if IBM decides to advocate reform rather than

>>>>> "Alessandro" == Alessandro Rubini <> writes:

    Alessandro> Can you please restate the counterarguments? I've
    Alessandro> never heard a sensible one. I just heard "it develops
    Alessandro> the market"

This is nonsense?  What is wrong with developing the market?  If
you're not in favor of developing markets, what are you doing on FSB?

If your argument is that it's bad for _your_ business, or some class
of businesses ("small companies and independent consultants"), well,
all regulations are bad for somebody's business.  That doesn't mean
that they don't promote business in general, or the social welfare.
Of course, FSBs are mostly going to fit into the unfortunate class,
but this is now pure self-interest, and not likely to carry much
weight with legislators (unless backed up by campaign contributions).

If your reply is "nothing wrong with developing the market, but it
doesn't, it destroys the market," then we're back where we started: it
doesn't do so in hardware; why is software different?

    Alessandro> to support the european proposal to accept sw patents,
    Alessandro> "because americans do that".

Unifying laws and practices is a good thing, in general.  Level
playing fields and all that.  Do you have a problem with that?

    Alessandro> Disgusting.

Um, do you want to rephrase that argument?  I'm afraid it doesn't parse.

    >> [1] Ie, our desire to accomplish our stated goal of spreading
    >> free software, which does not (as has been pointed out)
    >> generate sufficient revenue to keep stables of patent lawyers
    >> on retainer.

    Alessandro> Not only spreading free software, also pay our
    Alessandro> bills.

More self-interest, strengthening the point of that footnote.

    Alessandro> All small companies and independent consultants
    Alessandro> can be destroyed by simply applying patent laws. I'm
    Alessandro> lucky (by now) I live in Europe.

Yes, this disaster, too, was predicted by Nostradamus.

But can be != will be.

Look, I don't like software patents.  But I don't think that the
current direction of debate, where the choir sings "Patents Are the
Instrument of the Devil" and the pastor preaches the sermon "Are You
Ready for the End of Time?" to them is likely to have good results
from our point of view.

It is highly likely, given the positions of companies like Oracle and
the rethinking that is going on at IBM and so on, that the U.S.'s
intellectual property laws will get substantially amended over the
next few years.  I rather suspect that those companies' money and
prominence will help them heavily influence the outcome of that
process.  I doubt they will worry much about how that affects free
software, unless they are convinced that software-in-general is more
like free software than it is like hardware.

Remember, large companies prefer stability and manageability, which
some degree of patent protection gives them.  They don't like the
current situation, where the difficulty of assessing prior art and the 
poor job the patent office is doing creates enormous uncertainty for
them.  But they have no problem with paying the running costs of the
patent system if that results in predictable costs and limited
monopoly profits for them.

I assess it likely that among the outcomes of such "reform" would be
better training for patent examiners, possibly something like the de
Concini arrangement to allow a "cooling off" period where prior art
could be presented before a patent is actually issued, and more
efficient patent search businesses catering to small software
developers.  All of these effects will raise costs substantially for
small developers, although not necessarily put them completely out of
business (they can pass on some level of such costs to their
customers), but is likely to make free (gratis) software untenable,
and thus will put free (libre) software at great risk.

But even that is not set in stone; as Brian Bartholomew points out, a
lot of free software will get developed "under the radar" to the level
where it becomes a threat to closed products (or before the patent is
issued, due to simultaneous development).  At which point millions of
users will have old, but useful, copies of it on pre-lawyer-letter
CD-ROMs, and users who want the latest features will (horrors![1])
have to pay for the new versions, whose vendors pay royalties.  Or
rebellious users can join samizdat networks of free software users
distributing unlicensed patches to older software.

At this point we have a non-Doomsday scenario[2] that may look quite
plausible to policy makers.  You don't believe it, I suppose; I
believe it, but assess near certainty that it's very suboptimal for
society.  But how do you propose to change the minds of people who
don't believe that an economy based on free software is really
feasible, and thus don't think that scenario is all that bad?

I can even imagine (before breakfast) that this would actually have a
beneficial effect on the free software movement, as the better
developers kept broadening the area of applications served by free
software in an attempt to stay off the patent lawyers' radar by
working in as yet unknown fields.  OK, I didn't believe that for more
than one second, I just pointed out the possibility to keep my
standing with the Red Queen.  But somebody's lobbyists will come up
with that argument, so be prepared for it.

[1]  Sarcasm intended.  I know some people think trying to collect
money for every copy of software is sinful.  I doubt that group
includes many U.S. Congressmen, although Hal Varian and Carl Shapiro
do claim it is the sin of self-destructiveness.

[2]  Hello, Brian Bartholomew.  You asked for it, you got it.

University of Tsukuba                Tennodai 1-1-1 Tsukuba 305-8573 JAPAN
Institute of Policy and Planning Sciences       Tel/fax: +81 (298) 53-5091
What are those two straight lines for?  "Free software rules."