Freedom of Speech in Software

[gnu () toad com <gnu () toad com>]

This article was written in response to the Patent Office's inquiry
into intellectual property issues, but it is just as relevant to our
own inquiries into export controls on cryptographic software.

The author, Phil Salin, is an economist and entrepreneur.

        John

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Freedom of Speech in Software          Phil Salin       7/15/91

To:     Patent and Trademark Office, Department of Commerce
        (E.R. Kazenske, Executive Assistant to the Commissioner,
        U.S. Patent and Trademark Office, Box 15, Washington, DC 20231)

From:   Phillip Salin, President, American Information Exchange Corporation
        2345 Yale St., Palo Alto, Ca.  94306  (415) 856-1234

Re:     Request for Comments, Advisory Commission on Patent Law
        Reform (56 FR 22702-02)

Title:  Freedom of Speech in Software

Date:   July 14, 1991


The following comments relate to point I. "Protection of Computer Related 
Inventions", subpoint c) "The Supreme Court has found that new and 
useful computer program-related inventions are eligible for patent 
protection.  What rationale, if any, exists in law or policy for Congress to 
now remove patent protection for this field of science and technology?"


SUMMARY OF POSITION. 

1.  Computer Programs are Writings. 
As such, they should be subject to copyright law (narrowly interpreted) or 
trade secret protection, but not patent law.  As writings, programs should 
be protected against any attempt by government to license what can be 
written. This includes well-intentioned but mistaken legal or policy 
arguments which create de facto censors and censorship under another 
name, viz. patent examiners and patent examination.

Such censorship and restraint on freedom of expression of software writers 
is anathema in a free society, and a violation of the First Amendment.  
That software patents are a severe violation of the rights of speech of 
programmers has not yet been widely recognized; this is perhaps in part 
because most lawyers, judges and politicians are still insufficiently 
knowledgeable regarding computers to realize that writing a computer 
program is in fact a form of writing, not significantly more arcane than 
writing music, mathematics, scientific papers, or for that matter, laws.  All 
of these forms of speech, including writing programs, deserve full 
protection under the First Amendment.

2.  Central Planning or Licensure of Good Ideas in Software Won't Work.
Just as any attempt to centralize or classify all original (or "non-obvious") 
literary, musical, or scientific writings in the patent office would fail, so 
any attempt to centralize information regarding all innovative software 
programs will also fail. No human can know all of software relevant to any 
large subject, just as no human can know all that has been written on any 
large subject, and for the same reasons.  Current and near-term 
innovations in the writing of software will cause the amount of software 
developed every year by the one million professional programmers in the 
U.S. to grow at an ever-increasing rate. As a result, the burden of central 
licensing of innovation by the patent office will grow steadily more 
onerous, creating unnecessary and costly barriers to software progress.

3.  Patents on Writings Discourage Trial and Error Perfection of Ideas.
Rather than allowing government to restrict different expressions of the 
same important idea, by patents or otherwise, public policy should 
recognize that the more important the idea, the more important it is to 
support the freest possible variation of expression, in order to rapidly 
perfect the idea. The intense competition of commercial software in recent 
years, and the rapid improvements in software practice which the free 
market in software has hitherto engendered, strongly validates this theory 
in practice.

 ELABORATION.   

1.  Computer Programs are Writings.

Anyone who has ever written both a program and an essay knows how 
similar these complex endeavors are.  Both require use of all one's skill and 
knowledge.  Both involve continual invention and creativity. Both require 
constant revision.  Both evolve with time, as one's knowledge grows. Both 
are written in a language which has a vocabulary that can be used in an 
infinite variety of ways.  Although software is often a less direct method of 
communication than prose, in that there may be many intermediaries 
between a particular programmer and the end-user of an application 
which uses a piece of his or her code, the same is true for other forms of 
expression.  Theater goers, for example, don't directly read theater scripts, 
but see and hear them acted by intermediaries (actors); nonetheless, the 
scripts are writings.

Neither essays nor software are written with primary attention to "What 
has someone else said?", much less "What has the official licenser/patent 
examiner pronounced?"  Rather, both are written with attention to solving 
a particular problem or achieving an objective of importance to the writer. 
In both cases, any similarity to the works of others normally comes about 
because of similarity in the problems which are being addressed, and not 
because of slavish copying of either ideas or implementations of others.

Writing programs today is no more esoteric than writing prose once was,
and writing music still is.  Until a few hundred years ago, literacy was a
rarity.  Acquiring the ability to write prose took training.  It still
does, but nowadays we teach writing to everyone in schools.  Other forms
of writing, such as writing music or writing computer programs, are
treated as optional, but we still recognize them as writing.  Even though
the notes don't sing by themselves -- they have to be played -- we
recognize the writing of music as a form of speech or expression.

Similarly, although a program has to be run to be used, before it can be 
run it has to be written.  There are now millions of individuals in the U.S.A. 
who know how to write a computer program. It is an absurdity to expect 
those millions of individuals to perform patent searches or any other kind 
of search prior to the act of writing a program to solve a specific problem.  
If others wish to purchase a program, as with the sale of written prose and 
written music, absolutely no patent restrictions should be placed on the 
ability of authors to sell or publish their own writings. To do otherwise is 
to confuse the player piano (which is patentable) with the specific 
arrangement of notes on a specific player piano roll (which is indeed 
subject to copyright, but not to patenting).

Regrettably, the courts have allowed the patent office to be placed in the 
position of promoting de facto censorship of the work of over 1,000,000 
employed writers of computer software, along with the several million 
additional amateur writers of computer software.  All these millions of 
citizens are now asked to censor their own writings, or have them 
reviewed and censored by third parties or the courts. Whenever and 
wherever the patent office issues a software patent, software authors must 
now plead with patent holders to grant - for a price - licenses to speak as 
they choose; and the patent holder is under no obligation to grant these 
licenses.

Suppression of free thought and speech in software (writing, or publishing) 
is an evil, even when only a small number of individuals recognize that 
speech is being restricted, or what the costs will be if this harmful 
censorship-by-another-name, viz "patent licensure", is now allowed to 
expand unchecked.

The grant by any agency of government of the exclusive right to speak in 
software, and the enforced branding by government of all alternative 
expressions of the same or similar ideas (algorithms) as illegal is 
inherently harmful.  It is to say, in effect, "Don't try to solve problems and 
invent solutions as you see fit; you or your software agents might 
independently write or invent something which the patent office's 
licensers have placed on the Index of Banned Algorithms; in which case, at 
their discretion, they can force you into an expensive, traumatic legal 
Inquisition..."

Under the First Amendment, the freedom to speak or write may not be 
abridged by any branch of government or by any government licensee. 
This holds regardless of the good or bad intentions of those who argue 
otherwise.


2.  Central Planning or Licensing of Good Ideas in Software Won't Work.

Requiring writers of software to know all potentially relevant patents is 
the same as requiring writers of literature to have read all potentially 
significant works of literature before ever setting pen to paper.  It is not 
possible; and even if it were, it is not desirable.

The main costs of software patents are not in the past or present; they are 
in the future.  As programming literacy increases, and as Object-Oriented 
Programming, Genetic Algorithms, Neural Networks, and Computer Aided 
Software Engineering techniques expand, the volume, breadth, complexity, 
and scale of software written will continue to expand exponentially.

As this happens, the percentage of all that is worth knowing about 
software which can be known by a single person will continue to drop 
exponentially.  This applies to software writers, and also to software 
readers, users, and reviewers, including patent examiners.  No one can 
know much of what is non-obvious and innovative in software, even today; 
tomorrow, the problem will be even worse.

We are now entering the era when programs can write and edit other 
programs, and where it will simply not be possible for anyone to know 
which programs have evolved or been automatically revised to the point of 
similarity with other programs, innovative or not.  Furthermore, new 
programs and algorithms will be written at the rate of the computer 
programs running to create them, not at the rate of the computer 
programmers typing code line by line.

At this point, software patents will go from being unworkable to being 
widely and deservedly recognized as impossible. For not only will they 
become impossible to enforce; they will become impossible to comply with. 
In the meantime, real companies will have to pay real lawyers increasing 
sums to try to avoid lawsuits, negotiate otherwise unnecessary cross-
licensing agreements, and continually waste time, money, attention and 
energy on these and other defensive, rear-guard activities which will add 
nothing to America's productivity or actual stock of inventive software.

Allowing patents in software is tantamount to asking each individual 
programmer to know what all the other millions of programmers on Earth 
are currently doing or have already done. Requiring such omniscience by 
software writers is a sure way to force them into civil disobedience, if not 
intentionally, then after they find that they increasingly and unwittingly 
are nevertheless violating patents of which they cannot adequately remain 
current or aware. When the law begins to tell people to do what is 
impossible, disobedience and disrespect for the law are the inevitable 
result.

Thus, the only thing which software patents can do is create increasingly 
arbitrary and costly roadblocks to progress, including crucial progress in 
using new tools and techniques for writing software.

Since promoting innovation is the primary rationale for patents, and since 
patents instead serve to impede innovation when it comes to software, and 
will increasingly impede innovation as the volume of software continues to 
expand, it is quite clear that patents should not be applied to software 
writings for this reason alone, independent of the First Amendment issues 
discussed earlier.

Similar considerations argue against a broad interpretation of copyrights, 
including broad "look and feel" claims.  The burden of proof should always 
be on the copyright holder to prove substantive and thorough copying or 
reverse engineering.  Like writers of literature, writers of software should 
not be expected to constantly look over their shoulders out of fear that 
someone someday may try to sue them due to partial or accidental 
similarities with the works of others.  Broad interpretations of copyright 
are even worse than patents in this respect, because claims of copyright 
infringement can be made by almost any party in any field, without 
significant time limit, and without any requirement to state publicly in 
advance exactly what aspects of one's work are sufficiently unique to 
deserve copyright protection.  As a result, the idea of copyright protection, 
coherent when applied to a specific piece of writing, becomes incoherent 
and requires de facto omniscience if applied to all possible variations on all 
existing pieces of writing.

Because the focus of this analysis is on patent law and software, further 
discussion of the dangers of broadly interpreted copyrights should take 
place elsewhere.


3.  Patents on Writings Discourage Trial and Error Perfection of Important 
Ideas.

Whenever a patent is granted on a particular expression of an idea in 
software, it will have a chilling effect on everyone who is considering 
writing software to solve similar problems. They must now tread gingerly 
lest their writings be later judged to overlap with the area that has had 
exclusive title granted to the patent holder; this holds even if their 
expression was independently derived, and even if it is a superior solution 
to the same problem. Given the manifest unpredictability of court 
decisions, many people will prudently decide not to innovate in areas in 
which someone has already been granted a patent. This is a perverse way 
to encourage invention.

Favoritism by a government official towards "non-obvious" (i.e. important) 
software innovations is like favoritism by government towards specific 
religious writings or specific commercial products in the marketplace: it's 
an inherently bad idea. The idea that one party's writings on a subject 
shall be certified by the Executive branch of the government, and all other 
expressions suppressed, would appear very strange to those who wrote the 
constitution.

Like a work of fiction, the value of a sophisticated work of software is not 
in the simple plot idea, but in the complex telling of the tale. It is only 
those unfamiliar with the strong feelings, beliefs and preferences which 
exist among writers of software regarding alternative expressions of the 
same software ideas who could believe that differences in expression of 
the "same" idea are unimportant to those who write software, or to those 
who use software written by others.

Imagine if, for 17 years, only one author was allowed to write about the 
plot line "boy meets girl, boy loses girl, boy regains girl".  Or that once 
some consortium of artists has invented rock and roll or string quartets 
(and produced an initial "reduction to practice"), no one else could write 
music in those styles for 17 years without their permission.  Or that once 
the first mathematician has invented a technique for dividing numbers, all 
other mathematicians must for 17 years request permission before 
inventing their own techniques, for fear of accidentally reinventing or 
coming too close to reinventing what another mathematician has also 
thought about.  In each of these cases, imagine the arrogance of someone 
claiming a right to bring before a court of law and convict of a civil crime 
all others who choose to think for themselves and write independently.

Any assertion that some one individual or organization can ever rightfully 
establish exclusive ownership of the use or refinement of abstract ideas - 
obvious or non-obvious, important or unimportant - embodied in a work of 
prose, music, mathematics, or software, should trouble the conscience of 
everyone whose creative work is built, as it necessarily must be, in part or 
in whole, out of ideas and techniques discovered and developed by others.

The notion that the better the idea, the better it is to grant one author a 
monopoly over all possible expressions of that idea is perverse.  It is 
precisely the most important ideas which deserve the most varied and 
thorough exploration.  The more important or innovative the area of 
discourse, the more important it is to avoid government favoritism or 
censorship of thought or expression.  Letting the government grant 
monopoly licenses to only the most important ("non-obvious") new ideas 
does not make such licensing better, but worse.

In addition to being harmful to the freedom of expression and 
experimentation with ideas by others, patents on software are also 
unnecessary.  As with any complex novel or movie, significant works of 
software necessarily involve significant complexity and detail. Barring 
direct copying, which can and should be prevented by copyright law, the 
expertise and judgement involved in creating and continually improving 
any complex piece of software provides inherent protection against would-
be competitors; those who invest in writing such complex software master 
the intricacies of the problem they are solving far better than any pure 
copycat competitor is likely to achieve.  Asking for more protection than 
this, however, is asking too much. In all walks of life one makes 
investments which one would like to protect. But where granting 
protection for some involves imposing licensing requirements on others, 
we should always err on the side of forbearance.  Software which is 
complex and original enough to deserve patent protection doesn't need it; 
and software which is simple enough to require patent protection doesn't 
deserve it.

Like censorship of religious speech in the 17th century, the issue here is 
not what the original justifications were (software patents as incentives to 
invention, etc.), but rather, how we can eliminate a dangerous, but 
avoidable, error: restrictive licensure of software; and how we can, instead, 
re-establish full freedom of speech in the writing and publishing of 
computer programs.

ACKNOWLEDGEMENTS.

These comments have benefited from review and suggestions and 
assistance of many colleagues, including: Ravi Pandya, Mark Miller, John 
Walker, Marc Stiegler, Chip Morningstar, Chris Hibbert, Chris Peterson, Eric 
Drexler, Eric Tribble, Nick Whyte, Gayle Pergamit, Roger Gregory, Robin 
Hanson, Michael McClary, Paul Baclaski, Rick Mascitti, Kimball Collins, and 
Bob Schumaker. Any error or inelegance of expression, however, remains 
the responsibility of the author.

The ideas in these comments have been evolving over a period of years, 
and may be to some extent original with the author.  However, there is a 
wider intellectual climate within which they are shared.  Several 
colleagues who share the general views expressed in this document have 
attached their signatures.  They are almost all writers of software.

Authors of non-software whose writings have heavily influenced my 
thinking regarding the severe dangers and foolishness of even attempting 
to centrally plan or license spontaneous areas of human endeavor such as 
the writing of software, are: F.A. Hayek (Law, Legislation, and Liberty); 
Karl Popper (Conjectures and Refutations); and Michael Polanyi (Personal 
Knowledge).

As President of a small company which is currently working day and night 
on developing an innovative software-based product, I do not have much 
free time to participate in public policy issues.  I had not until recently 
planned to attempt to write my views on the subject of software patents 
and copyrights until a few years from now, when I would have more 
leisure to fully research, critique, and elaborate on them.  However I have 
decided to make these views public at this time, in somewhat "raw" form, 
as a contribution to regulatory proceedings which I consider to be of the 
utmost importance.

I apologize for any lack of familiarity with the fine points of current patent 
law as it is currently being applied to software.  My whole point is that any 
such details are necessarily irrelevant once one recognizes that patents 
should not be applied to any form of writing, including the writing of 
computer software.

---Phil Salin, July 14, 1991.