Last year IBM took a significant step forward in cooperation with the free software community by offering blanket licenses for 500 of its patents to all free software developers. This does not cover all of IBM's software patents, which must number in the thousands. And there are other areas where IBM does not yet cooperate with the free software community -- they have not provided the necessary information to port a free BIOS to ThinkPads, for instance, and they are still pursuing Treacherous Computing. Nonetheless, this is a real step.

Recently Sun made an announcement that superficially seems similar. It said that Sun had given us "free access to Sun OpenSolaris related patents under the Common Development and Distribution License." But those words do not really make sense. The CDDL is a license for the copyright on software, not a policy for licensing patents. It applies to specific code and nothing else. (Copyright and patents have essentially nothing in common in the requirements they impose on the public.)

So what has really happened here? Reading the announcement clearly, I think that it doesn't announce anything at all. It simply describes, in a different and grandiose way, the previously announced release of the Solaris source code as free software under Sun's idiosyncratic license, the CDDL. Outside Solaris, few or no free software packages use that license - and Sun has not said it won't sue us for implementing the same techniques in our own free software.

Perhaps Sun will eventually give substance to its words and make this step a real one like IBM's. Perhaps some other large companies will take similar steps. Would this make free software safe from the danger of software patents? Would the problem of software patents be solved? Not on your life. Neither one.

We can be quite sure that not all large patent holders will do this. In fact, there is one company with lots of patents that surely won't take such a step. That is Microsoft, which says it is our enemy. Microsoft would love to make useful free software effectively illegal, and has plenty of money to pay lawyers to use whatever avenues governments provide them.

But the danger is not only from those that specifically consider us their enemies. It also comes from patent holders that are the enemy of everyone. These are the patent parasites - companies whose sole assets are patents, and whose only business is threats. Patent parasites don't really produce anything, they only suck the blood of those who do. As regards their choice of victims, they have the scruples of a mosquito, so you're only safe if they don't think you're worth biting.

Consider, for instance, the company founded by ex-Microsoft executive Myhrvold, which cheerfully says it is spending $350M to buy up patents (not specifically in software) so it can go around threatening and bullying everyone else. Of course, these parasites don't like to describe their activities in such terms. Much as the mafia, when it threatens to attack local businesses unless they pay, says it is charging for "protection," Myhrvold's company prefers to say it is "renting out" the patents. It expects this investment in what we could call the "patent protection racket" to pay off handsomely. For that to occur, lots of people have to get bitten.

The danger of software patents is not limited to free software, which is why the opposition to software patents is not limited to free software developers. Everyone involved with computers, aside from the megacorporations, must expect to lose. For instance, proprietary software developers are much more likely to be the victims of patents than to have a chance to use patents for aggression. Although I don't think proprietary software is ethically legitimate, it is a fact that developers of proprietary software are in the same danger from patents, and many of them know it.

Then think of all the software that is neither free nor proprietary: private-use software, software developed for and used by one client. Most software is private-use software. The developers of this software can also be sued for using patented techniques, and so can the users of the software. Any software patent holder, including the pirates, can sue computer users as well as software developers. Threatening the users is a common technique for an unscrupulous patent holder to put the screws on a developer.

We can honestly thank IBM for agreeing not to sue us with 500 of its patents, and if Sun does likewise, we will be able to thank Sun, too. But defusing a small fraction of the landmines in the field of software won't make it safe to walk around. We mustn't let these partial measures lull us into thinking that computing can tolerate the patent system. The battle against software patents, in Europe and elsewhere, must continue!

Copyright 2005 Richard Stallman
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