Issue 11 Bulletin December 2007

ment in the 1980s, the FSF began to Contents focus on the licensing of free software and the idea of protecting free soft- Clearing Landmines 1 ware from efforts to make it propri- etary. Developing and refining the idea End Software 3 of a copyleft, FSF founder and presi- Patents Coalition dent Richard Stallman wrote the GNU General Public License and later the AntiFeatures 5 GNU Free Documentation License— which is used for documentation, man- The GNU AGPL 7 uals, and countless other works, in- cluding all Wikipedia articles. Interview: Rob 9 Throughout the 1990s, the GNU Myers system along with the kernel Linux was able to run as a standalone OS. De- velopment happened so rapidly that by the end of the decade, our focus Clearing Landmines was switching from pure software de- velopment to spreading the philosophy by Peter Brown and tackling the growing threats to free Executive Director software that came as result of its suc- or the past twenty-two years the cess. FFree Software Foundation has had Today you can, rather easily, in- the mission to promote, preserve, and stall an all free OS that has been protect the freedoms to use, study, produced from the contributions of copy, modify, and redistribute modi- hundreds of thousands of people from fied computer software, and to defend around the world. However, what the rights of all free software users. took over twenty years of community When the FSF was founded in 1985 development to build and spread is there did not yet exist an all free soft- under threat: threats from govern- ware operating system (OS) so our ef- ment legislation, threats from Digi- forts focused on sponsoring the GNU tal Restrictions Management (DRM), system. The free software community threats from software patents. The was small at first, but it quickly grew FSF has been campaigning these past in numbers and in its geographic reach. few years to counter these threats. In addition to software develop- Our anti-DRM campaign

1 DefectiveByDesign.org has had tre- art to challenge the validity of a par- mendous success and DRM is in de- ticular claim. But this perception is cline in the music industry. After wrong. The US Supreme Court has eighteen months of community review, ruled three times that software cannot we released GPLv3 on June 29—a li- be patented, and has worked hard to cense that neutralizes anti-free soft- draw a line to ensure patentable man- ware laws like the Digital Millenium ufacturing processes could utilize steps Copyright Act (DMCA) and protects in software as long as there was a phys- free software from tivoization. Now, ically inventive step. we are turning our attention to clear- Unfortunately, the lower Court of ing the landmines represented by soft- Appeals for the Federal Circuit has ware patents. made a mess of the work of the In 2004 Richard Stallman said, Supreme Court, and it is that mess we aim to clear up—and with it, all the Software patents are software patent landmines. the software project equi- The Free Software Foundation is valent of land mines: each launching a coalition effort to End design decision carries a Software Patents (ESP), risk of stepping on a endsoftpatents.org. Inside this bul- patent, which can destroy letin, the director of ESP Ben Klemens your project. However, helps clarify the quicksand upon which fighting patents one by one software patents rest. will never eliminate the danger of software patents, any more than swatting mosquitoes will eliminate malaria.

Software patents obstruct the prog- ress of software development and they pose a threat to every software de- veloper looking to contribute to the development of the GNU system and any free software project. Indeed, Mi- crosoft is using the threat of software patents to extract tolls from corpo- rations for using GNU/Linux and is threatening free software distributors. There are many arguments against the patentability of software that one can logically make, but it is a com- monly held perception that software is patentable within the USA, and the best that can be done is to limit the effect of software patents by engineer- ing around them or looking for prior

2 Procedure (MPEP), which is their at- tempt to interpret the existing judicial rulings in a coherent manner. Judicial: Because the other branches are currently leaving it up to the courts, the existing law by which a claim is judged is entirely from the courts. The Supreme Court made three rulings regarding whether software is patentable: Gottshalk v. Benson, Parker v. Flook, and Diamond v. Diehr. These can easily be read as the Court dealing with the question of what is a general-purpose computer and how it differs from a patentable device. The first two rulings stated, hands-down, that software should not be patentable, even if the mathemati- cal formula embodied in the software is “useful” for human affairs, and even if there is a physical last step, which the Flook ruling called “post-solution applications of such a formula.” The End Software Patents third ruling, Diamond v. Diehr, al- lowed a patent on complex machinery Coalition to stand. The conclusion of the ruling is worth reading in its entirety, because by Ben Klemens it is the axis around which the “what Director, End Software Patents is a general-purpose computer” defini- ur primary goal in this campaign tion revolves: Ois to reverse the U.S. Court of Ap- peals for the Federal Circuit (CAFC) We have before us to- decision of In re Alappat. Here, I will day only the question of explain the history of what that ruling whether respondents’ claims meant, and why that same history has [are] patentable subject mat- shown us that it should be the focus of ter. We view respondents’ our campaign. claims as nothing more From whence does the law of what than a process for molding can be claimed in a patent derive? rubber products and not Legislative: There is basically as an attempt to patent a nothing. To date, Congress has mathematical formula. We handed off this question to the other recognize, of course, that branches. when a claim recites a ma- Executive: There is the USPTO’s thematical formula (or sci- Manual of Patent Examination and entific principle or pheno-

3 menon of nature), an in- ing of rubber products, we quiry must be made into affirm the [validity of the whether the claim is seek- patent]. ing patent protection for that formula in the ab- The axis of the Diehr ruling is that stract. A mathematical “On the other hand” phrase on the formula as such is not ac- starred line (“[*]”). The lines before corded the protection of stated software loaded onto a general- our patent laws, Gottschalk purpose computer is not what patents v. Benson, and this pr- are about, and the line after the star inciple cannot be circum- states that when a device is transform- vented by attempting to ing matter and curing rubber, then limit the use of the formula that’s a real live machine. to a particular technolo- So far, it’s all wine and roses: we gical environment. Parker have a specific discussion of what can v. Flook. Similarly, in- be claimed, and it excludes pure soft- significant postsolution a- ware on the one hand but allows a ctivity will not transform machine with task-specific code to be an unpatentable principle patented as a machine. into a patentable process. Omitting a ruling or three, the To hold otherwise would al- Court of Appeals for the Federal Cir- low a competent draftsman cuit then took over. I have nothing to evade the recognized nice to say about the CAFC, so I won’t limitations on the type of say anything. But these are the guys subject matter eligible for who ruled on In re Alappat, which I patent protection. [*]On mention as the single thorn in our cam- the other hand, when a paign’s side. claim containing a mathe- In re Alappat was yet another matical formula impleme- case over a software device, and the nts or applies that formula court used only the second half of in a structure or process the above Diamond v. Diehr ruling— which, when considered as “patent laws were designed to protect a whole, is performing a . . . transforming or reducing an article function which the patent to a different state or thing . . . ” and laws were designed to pro- pointed out that programming a stock tect (e. g., transforming computer with software creates a “new or reducing an article to machine.” After all, the memory on a different state or thing), the computer is transformed to a dif- then the claim satisfies the ferent state. That’s why we computer requirements of 101. Be- geeks call it a state machine. cause we do not view re- In other words, they threw out the spondents’ claims as an at- entire debate about distinguishing be- tempt to patent a mathe- tween a general-purpose computer or a matical formula, but rather specialized device, and just said it’s all to be drawn to an indus- patentable. trial process for the mold- So once In re Alappat was accepted,

4 business method patents and tax loop- AntiFeatures hole patents followed naturally. By eliminating Diehr’s balance between by Mako Hill “insignificant post solution activity” Board of Directors and bona fide machines, everything be- n 1996, a furor erupted over Micro- came patentable. Isoft Windows NT. At the time, Mi- The important part of this narra- crosoft was selling two versions of its tive is that In re Alappat threw out the popular operating system: NT Work- question of what is a general-purpose station (NTW) and NT Server (NTS). or special-purpose computer as just ir- NTS cost roughly $800 more than relevant and not worth debating. the NTW. While NTS included a se- And that, dear reader, is where ries of server applications not bun- software patents come from. And that dled with NTW, Microsoft maintained is why we must end software patents. that the NTW and NTS operating sys- tems themselves were, “two very dif- ferent products intended for two very different functions.” NTS, Microsoft claimed, was suited and tailored for use as an Internet server while NTW was grossly inadequate. Aiming to enforce this difference, both the NTW code and the license agreement restricted users to no more than ten concurrent TCP/IP (i.e., Internet) connections; NTS remained unlimited. Many users noticed that NTW and NTS were very similar. Digging fur- ther, an analysis published by O’Reilly revealed the kernel, and in fact every binary file included in NTW, was iden- tical to those shipped in NTS. The sole difference between the two products’ cores lay in the operating systems’ installation information. The server version contained several options or flags that marked it as either NTW or NTS. If the machine was flagged as NT Workstation, it would disable cer- tain functionality and limit the num- ber of network connections. Billed as a simple web server useful for personal use, Microsoft’s Personal Web Server (PWS) included on NTW was, in fact, identical to the company’s enterprise- focused IIS shipped with NTS; when IIS started on a machine flagged as

5 NTW, it would proceed to eliminate showing pop-ups (i.e., the way the and limit functionality. On NTS where feature was originally implemented in flags were set differently, new function- Mozilla and celebrated by users) is eas- ality would appear, and limitations— ier than showing them. Microsoft held including the ten-connection ceiling— back not because it was difficult, but disappeared. because others parts of Microsoft, and The ability to run an unlimited their partners, used and made money number of connections, as well as many from pop-ups. Ultimately, Microsoft of the other characteristics that differ- lost droves of users to the free alterna- entiated NTW and NTS, are what I tive that was willing to put users first. call antifeatures. An antifeature, in Until 2005, another proprietary web the way I use the term, is function- browser, Opera (which offered pop-up ality that a technology developer will blocking before Firefox did) displayed charge users to not include. It is more an irremovable banner advertisement difficult for Microsoft to limit Internet unless users paid for premium version connections than it is to leave them of the software. No users liked the ban- unconstrained, and the limit is not ners, and obviously, it’s more difficult something that any user would request. to show advertisements than it is to DRM and Treacherous Computing sys- leave them out. tems are, in many ways, extreme ex- Unfortunately, for the companies amples of antifeatures. Users don’t and individuals trying to push antifeat- want either and they are hugely expen- ures, users increasingly often have al- sive and extremely difficult for devel- ternatives in free software. Software opers to implement. freedom, it turns out, makes antifeat- Region-coded DVDs, copy-protect- ures impossible in most situations. Mi- ion measures, and Apple’s optional crosoft’s predatory NT pricing is im- DRM music store—where users ini- possible for GNU/Linux, where users tially paid more for the DRM-free can program around it. A version tracks—are also excellent examples. It of Firefox funded by advertisements takes a large amount of work to build would be too—users would simply these systems and users rarely bene- build and share a version of the soft- fit from or request them. Like black- ware without the antifeatures in ques- mail, users can sometimes pay technol- tion. Ultimately, the absence of simi- ogy providers to not include an antifea- lar antifeatures form some of the easi- ture in their technology. est victories for free software. It does But sometimes, as in the case with not cost free software developers any- many DRM systems, users cannot pay thing to avoid antifeatures. In many to turn their antifeatures off at all! An cases, doing nothing is exactly what example of such an antifeature can be users want and what proprietary soft- seen in the fact that Mozilla and Fire- ware will not give them.1 fox were blocking pop-ups for years be- 1web.archive.org/web/20010708214136/ fore Microsoft got around to adding www.zdnet.com/eweek/news/0826/26lic. the feature to its competing Internet html ftp.ora.com/pub/examples/ Explorer browser. Despite the fact windows/win95.update/ntwk4.html www. that Firefox has become fancy about oreilly.com/news/differences_nt.html tim.oreilly.com/articles/10-conn.html pop-up blocking recently, simply not

6 The GNU AGPL provements over its predecessor. First, all the benefits of GPLv3 exist in by Brett Smith AGPLv3 as well: internationalization, Licensing Compliance Engineer protection against tivoization, strong e recently published the GNU defenses against patent aggression, and WAffero General Public License, so on. version 3. You can find it at fsf.org/ Second, AGPLv3 has a broader licensing/licenses/agpl-3.0.html. scope. The original Affero GPL was It has the same conditions as GPLv3, designed primarily for web applica- with an additional term that requires tions; it stated that users had to be you to make sure that, when you mod- able to “request immediate transmis- ify the program, it offers its source to sion by HTTP of the complete source users who interact with it over a net- code,” making it hard to adapt for pro- work. grams using other protocols. AGPLv3 This is a spiritual successor to the instead simply requires that the pro- original Affero General Public License, gram “prominently offer all users . . . an which was based on GPLv2 and also opportunity to receive the Correspond- had an additional provision so that ing Source of your version by provid- people using the software over a net- ing access to the Corresponding Source work could get its source. However, from a network server...” This is a the new license also offers several im- flexible requirement that any network-

7 capable software should be able to han- GPLv3 Wiki. After SourceForge re- dle with relative ease. leased their code as free software, peo- Third, AGPLv3’s new require- ple started creating alternatives to the ment degrades gracefully. If you use site, some of them more featureful than AGPLv3-covered code in a program the original. that doesn’t interact with users over a AGPLv3 takes that one step fur- network, there are no additional obli- ther by putting developers on a more gations for you to meet. You can share level playing field. One of the reasons and modify the program under the the GPL has been such a successful same conditions that apply to GPLv3- free software license is because it cre- covered software. ates an environment where people feel Finally, you can combine modules comfortable contributing—they know released under AGPLv3 and GPLv3. that everybody else will play by the Programmers who want to use AG- same rules. By making sure that de- PLv3 for their own work can take ad- velopers at least have access to source, vantage of the many libraries and other AGPLv3 will similarly enable people source files available under GPLv3. to create communities around network- And developers working on GPLv3- centric applications that are focused on covered projects will often be able freedom. to use the AGPLv3-licensed modules A big conversation about freedom with minimal hassle as well, since AG- on the network is beginning. We think PLv3’s additional term has no require- that AGPLv3, and the code that uses ments for software that doesn’t inter- it, will add a lot to the discussion, but act with users over a network. that’s not going to be the end of it. This isn’t a complete solution for We’re looking forward to new technol- bringing freedom to web services. Un- ogy that can provide the benefits of fortunately, the current architecture web services but keep control in users’ that we use to build network applica- hands. We also want to see what com- tions is inherently unfriendly to users’ munity norms take shape around this freedom. Generally, all the code and kind of software—what you all think data lives on someone else’s server, un- deployers ought to do, and what it der their control and out of yours. You would be nice of them to do. There’s can never be completely free in such an a lot of exciting work ahead, and we environment. hope you’ll join us in it. Together, we However, AGPLv3 advances a vi- can build software that gives its users sion of how freedom works in the com- both convenience and freedom. puting environment of today and to- morrow. Before this, GPLed web applications provided a lot of good for the community despite their lim- itations. Even if you can’t dupli- cate a whole site, being able to du- plicate its functionality can be helpful. There’s only one Wikipedia, but the free software MediaWiki code also runs Citizendium, Conservapedia, and the

8 Interview: Rob Myers get permission from them for all the found video footage she’d used. Interviewed by Matt Lee People have different views on how Campaigns Manager free culture should be approached, and ob Myers is an artist, hacker and discussing my own views with others Rfree culture activist who has been is a way of learning about the issues remixing images and coding up art and keeping honest. Finding out how for more than fifteen years. He held things are different around the world the first solo all-copyleft-licensed art helps to keep a sense of perspective show, has been involved with commu- as well. When I talked about Cre- nity projects such as Free Culture UK ative Commons licenses in Serbia, peo- and Remix Reading, and has advised ple just laughed and told me that copy- on corporate projects such as “Where right didn’t apply there. In the UK the Are The Joneses?” and “4Laughs.” activity around the Gowers Review Of Matt: Rob, you are known to “Intellectual Property” was very posi- many for your commentary on free cul- tive. ture, both on and offline. I imagine Matt: As an author, both online you interact with this community a lot, as well as in occasional printed form, what is that like? what are your thoughts on eBooks and Rob: It’s always good to find out eBook readers like the Amazon Kin- how free culture touches on different dle? people’s interests, not just activists’. Rob: As someone who has been One of the best discussions of music through art school and designed books copyright I’ve had was with the driver and other materials for print, I really of a bus I was on who turned out appreciate the different qualities of pa- to be a Beatles fan and knew about per and ink. I love finding an old Art & the George Harrison “My Sweet Lord” Language monograph in a book stall. case. Another time I spoke to an But I also enjoy being able to get clas- artist at her private view who’d almost sic texts from Project Gutenberg and lost her funding for that show because read them or search them or feed them the funding body wanted her to track into a Markov chain. And having refer- down every single copyright holder and ence works in electronic format is very

9 convenient. I think eBooks comple- tivoized, they would not have been able ment and extend what is possible with to. I’m very glad that GPLv3 tackles physical books rather than replacing tivoization. them entirely. Tivoization can lock you out of What breaks the commercialization access to cultural work and personal and wider adoption of eBooks, the memorabilia that you own or have cre- same as it did for digital music for- ated. Its legal or technological form mats, is DRM. I’ve owned physical is unimportant when considering its books with anti-photocopying printing practical effects. This is true of DRM or with restrictive licenses printed in as well. Those within the free culture them and that is bad but it is nothing movement can and should tackle these compared to DRM. issues alongside those within the free Kindle, as well as being a hor- software movement. rible piece of industrial design with Matt: You’ve written a few pieces a disempowering user experience, is of free software for artists—most of encumbered with DRM. I just hope these are now released under version that Amazon follow the same path, 3 of the GPL. What’s the hold up on away from DRM, that Apple seems Minara? to be following. But that will take Rob: I regard software freedom as competition—and with a few notable a principle to be protected rather than exceptions, the other eBook vendors all as the product of a particular license. seem to be using DRM as well. GPLv3 seems to be an effective and I want DVD-style special editions proportionate response to challenges to of print books as eBooks, I want the that principle that have emerged over potential of hypertext to be realized, the last decade or so. Arguing that and I want a good platform for gen- tivoization or DRM are not or should erative literature all on something like not be part of the GPL’s remit does a Kindle but with industrial design by not make sense: they are threats to IDEO and software by GNU. I don’t the freedom of software that didn’t ex- want my old ASCII files uploaded to ist a decade ago in much the same way Amazon, made useless by the addition that the threats to older versions of the of DRM, then downloaded to some- GPL tackled didn’t exist forty years thing that I’d be embarrassed to be ago. seen on the tube with. Minara (Minara Is Not A Recursive Matt: What do you think of Algorithm) is a programmable graph- tivoization? What does it mean for ics program editor. A kind of Emacs free culture? for vector graphics. The program, its Rob: I don’t understand people, tools, and the images it edits are all usually developers, who want to priv- written in user-editable Scheme. I used ilege Tivo’s ability to modify software some Scheme code from a third party that wasn’t theirs to start with over that seems to be GPLv2 only and I the freedom of the actual users of that need to find the author of that code to software to do the same. If those devel- relicense it. The moral of this is that opers had been in the position of these people need to make it clear that their users when they wanted to develop the code is licensed GPL version x or later. software that they are happy to see Matt: On the subject of the Ama-

10 zon’s Kindle eBook Reader, Mark Pil- dom. It is tivoization for the web. Web grim pointed out that “The Right To 2.0 may just be Google’s aftermarket— Read” was supposed to be a warning, “economic heat noise” as Eben Moglen not a design document—what would accurately described it. But the trend be your message to authors unaware to utility computing and The Cloud of the dangers of DRM books? means that not just executable soft- Rob: Don’t mistake a protection ware but data will be locked away out- racket for job security. Find out what side of users’ control. authors like Cory Doctorow have to say As an artist or author, I wouldn’t about the negative effects that DRM want to use hosted software or store has on your relationship with your my work primarily on a hosted ser- readers and customers, and, look at vice. If there is an earthquake or an their examples of turning unauthorized economic slump near my data center, copying into free promotion. Using I don’t want to lose my work. copyleft and network effects to drive AGPL will help with access to soft- sales is a strategy that works, Has- ware, but not with access to data or bro adopted it for their relaunch of cultural work, at least not directly. the Dungeons & Dragons game books Common formats, web services, and a few years back. user rights charters are needed as much And don’t forget that DRM-free as access to code—which you will need music still sells well and is now being to pay for access to The Cloud to run called for by music retailers as well as anyway. Free culture can help both to fans. make the case for this environment and Matt: Finally, as web applications to provide and protect content for par- become increasingly common, what ticipants in it. dangers do you see ahead, as the pos- sibility of hosted graphics and design software becomes ever closer? Do you think the newly released GNU Affero GPL will help? Rob: Software as service may be the next great threat to software free-

11 Netflix Mini-Letter. How to Contribute If you are a Netflix cus- Associate Membership: tomer, we encourage you Become a “card-carrying” asso- to cut out the mini-letter ciate member of the FSF. Ben- letter on page two, sign- efits include a complimentary it, and ship it off with FSF Privacy USB Key or a your next return-DVD. You copy of Free Software, Free So- can find more mini-letters at ciety, plus bootable membership card, and e-mail forwarding. To DefectiveByDesign.org. sign-up or get more information, visit member.fsf.org or write to [email protected]. Online: Use your credit card or Special Thanks to Randall Munroe, PayPal account to make a dona- tion at donate.fsf.org. the author of xkcd, for allowing us to use and rearrange 1337: Part 4. See it Phone: You can also make a all in one piece at credit card contribution by call- http://xkcd.com/344. ing us at +1-617-542-5942. United Way: As a 501(c)(3) This bulletin was produced using tax-exempt organization, the only free software: LaTeX, Emacs, FSF is eligible to receive United Inkscape, GIMP, Imagemagick and Way funds. On the donor form, Ghostview, markdown, gnuhtml2latex, check the “Specific Requests” and Perl. box and include the sentence, “Send my gift to the Free Soft- ware Foundation, 51 Franklin Street, 5th Floor, Boston, MA Copyright c 2007 02110”. Free Software Foundation Buy GNU Gear 51 Franklin Street, 5th Floor : Order one of Boston, MA 02110-1301 our T-shirts, caps or manuals at (617)542-5942 order.fsf.org. You can even [email protected] get a copy of Free Software, Free Society signed by Richard Stall- Verbatim copying and distri- man! bution of this entire bulletin is permitted in any medium, Volunteer: To learn more, visit provided this notice is pre- fsf.org/volunteer. served. Contact: [email protected] for more information on sup- porting the FSF.

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