Bulletin Issue 11

December 2007

Contents

Clearing Landmines 1

End SoftwarePatents Coalition

3

AntiFeatures 5

The GNU AGPL 7

Interview: RobMyers

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Clearing Landmines

by Peter Brown

Executive Director

For the past twenty-two years theFree Software Foundation has had

the mission to promote, preserve, andprotect the freedoms to use, study,copy, modify, and redistribute modi-fied computer software, and to defendthe rights of all free software users.

When the FSF was founded in 1985there did not yet exist an all free soft-ware operating system (OS) so our ef-forts focused on sponsoring the GNUsystem. The free software communitywas small at first, but it quickly grewin numbers and in its geographic reach.

In addition to software develop-

ment in the 1980s, the FSF began tofocus on the licensing of free softwareand the idea of protecting free soft-ware from efforts to make it propri-etary. Developing and refining the ideaof a copyleft, FSF founder and presi-dent Richard Stallman wrote the GNUGeneral Public License and later theGNU Free Documentation License—which is used for documentation, man-uals, and countless other works, in-cluding all Wikipedia articles.

Throughout the 1990s, the GNUsystem along with the kernel Linux wasable to run as a standalone OS. De-velopment happened so rapidly thatby the end of the decade, our focuswas switching from pure software de-velopment to spreading the philosophyand tackling the growing threats to freesoftware that came as result of its suc-cess.

Today you can, rather easily, in-stall an all free OS that has beenproduced from the contributions ofhundreds of thousands of people fromaround the world. However, whattook over twenty years of communitydevelopment to build and spread isunder threat: threats from govern-ment legislation, threats from Digi-tal Restrictions Management (DRM),threats from software patents. TheFSF has been campaigning these pastfew years to counter these threats.

Our anti-DRM campaign

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DefectiveByDesign.org has had tre-mendous success and DRM is in de-cline in the music industry. Aftereighteen months of community review,we released GPLv3 on June 29—a li-cense that neutralizes anti-free soft-ware laws like the Digital MilleniumCopyright Act (DMCA) and protectsfree software from tivoization. Now,we are turning our attention to clear-ing the landmines represented by soft-ware patents.

In 2004 Richard Stallman said,

Software patents arethe software project equi-valent of land mines: eachdesign decision carries arisk of stepping on apatent, which can destroyyour project. However,fighting patents one by onewill never eliminate thedanger of software patents,any more than swattingmosquitoes will eliminatemalaria.

Software patents obstruct the prog-ress of software development and theypose a threat to every software de-veloper looking to contribute to thedevelopment of the GNU system andany free software project. Indeed, Mi-crosoft is using the threat of softwarepatents to extract tolls from corpo-rations for using GNU/Linux and isthreatening free software distributors.

There are many arguments againstthe patentability of software that onecan logically make, but it is a com-monly held perception that software ispatentable within the USA, and thebest that can be done is to limit theeffect of software patents by engineer-ing around them or looking for prior

art to challenge the validity of a par-ticular claim. But this perception iswrong. The US Supreme Court hasruled three times that software cannotbe patented, and has worked hard todraw a line to ensure patentable man-ufacturing processes could utilize stepsin software as long as there was a phys-ically inventive step.

Unfortunately, the lower Court ofAppeals for the Federal Circuit hasmade a mess of the work of theSupreme Court, and it is that mess weaim to clear up—and with it, all thesoftware patent landmines.

The Free Software Foundation islaunching a coalition effort to EndSoftware Patents (ESP),endsoftpatents.org. Inside this bul-letin, the director of ESP Ben Klemenshelps clarify the quicksand upon whichsoftware patents rest.

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End Software Patents

Coalition

by Ben Klemens

Director, End Software Patents

Our primary goal in this campaignis to reverse the U.S. Court of Ap-

peals for the Federal Circuit (CAFC)decision of In re Alappat. Here, I willexplain the history of what that rulingmeant, and why that same history hasshown us that it should be the focus ofour campaign.

From whence does the law of whatcan be claimed in a patent derive?

Legislative: There is basicallynothing. To date, Congress hashanded off this question to the otherbranches.

Executive: There is the USPTO’sManual of Patent Examination and

Procedure (MPEP), which is their at-tempt to interpret the existing judicialrulings in a coherent manner.

Judicial: Because the otherbranches are currently leaving it up tothe courts, the existing law by whicha claim is judged is entirely from thecourts.

The Supreme Court made threerulings regarding whether software ispatentable: Gottshalk v. Benson,Parker v. Flook, and Diamond v.

Diehr. These can easily be read asthe Court dealing with the questionof what is a general-purpose computerand how it differs from a patentabledevice. The first two rulings stated,hands-down, that software should notbe patentable, even if the mathemati-cal formula embodied in the softwareis “useful” for human affairs, and evenif there is a physical last step, whichthe Flook ruling called “post-solutionapplications of such a formula.” Thethird ruling, Diamond v. Diehr, al-lowed a patent on complex machineryto stand. The conclusion of the rulingis worth reading in its entirety, becauseit is the axis around which the “whatis a general-purpose computer” defini-tion revolves:

We have before us to-day only the question ofwhether respondents’ claims[are] patentable subject mat-ter. We view respondents’claims as nothing morethan a process for moldingrubber products and notas an attempt to patent amathematical formula. Werecognize, of course, thatwhen a claim recites a ma-thematical formula (or sci-entific principle or pheno-

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menon of nature), an in-quiry must be made intowhether the claim is seek-ing patent protection forthat formula in the ab-stract. A mathematicalformula as such is not ac-corded the protection ofour patent laws, Gottschalk

v. Benson, and this pr-inciple cannot be circum-vented by attempting tolimit the use of the formulato a particular technolo-gical environment. Parker

v. Flook. Similarly, in-significant postsolution a-ctivity will not transforman unpatentable principleinto a patentable process.To hold otherwise would al-low a competent draftsmanto evade the recognizedlimitations on the type ofsubject matter eligible forpatent protection. [*]Onthe other hand, when aclaim containing a mathe-matical formula impleme-nts or applies that formulain a structure or processwhich, when considered asa whole, is performing afunction which the patentlaws were designed to pro-tect (e. g., transformingor reducing an article toa different state or thing),then the claim satisfies therequirements of 101. Be-cause we do not view re-spondents’ claims as an at-tempt to patent a mathe-matical formula, but ratherto be drawn to an indus-trial process for the mold-

ing of rubber products, weaffirm the [validity of thepatent].

The axis of the Diehr ruling is that“On the other hand” phrase on thestarred line (“[*]”). The lines beforestated software loaded onto a general-purpose computer is not what patentsare about, and the line after the starstates that when a device is transform-ing matter and curing rubber, thenthat’s a real live machine.

So far, it’s all wine and roses: wehave a specific discussion of what canbe claimed, and it excludes pure soft-ware on the one hand but allows amachine with task-specific code to bepatented as a machine.

Omitting a ruling or three, theCourt of Appeals for the Federal Cir-cuit then took over. I have nothingnice to say about the CAFC, so I won’tsay anything. But these are the guyswho ruled on In re Alappat, which Imention as the single thorn in our cam-paign’s side.

In re Alappat was yet anothercase over a software device, and thecourt used only the second half ofthe above Diamond v. Diehr ruling—“patent laws were designed to protect. . . transforming or reducing an articleto a different state or thing . . . ” andpointed out that programming a stockcomputer with software creates a “newmachine.” After all, the memory onthe computer is transformed to a dif-ferent state. That’s why we computergeeks call it a state machine.

In other words, they threw out theentire debate about distinguishing be-tween a general-purpose computer or aspecialized device, and just said it’s allpatentable.

So once In re Alappat was accepted,

4

business method patents and tax loop-hole patents followed naturally. Byeliminating Diehr’s balance between“insignificant post solution activity”and bona fide machines, everything be-came patentable.

The important part of this narra-tive is that In re Alappat threw out thequestion of what is a general-purposeor special-purpose computer as just ir-relevant and not worth debating.

And that, dear reader, is wheresoftware patents come from. And thatis why we must end software patents.

AntiFeatures

by Mako Hill

Board of Directors

In 1996, a furor erupted over Micro-soft Windows NT. At the time, Mi-

crosoft was selling two versions of itspopular operating system: NT Work-station (NTW) and NT Server (NTS).NTS cost roughly $800 more thanthe NTW. While NTS included a se-ries of server applications not bun-dled with NTW, Microsoft maintainedthat the NTW and NTS operating sys-tems themselves were, “two very dif-ferent products intended for two verydifferent functions.” NTS, Microsoftclaimed, was suited and tailored for useas an Internet server while NTW wasgrossly inadequate. Aiming to enforcethis difference, both the NTW codeand the license agreement restrictedusers to no more than ten concurrentTCP/IP (i.e., Internet) connections;NTS remained unlimited.

Many users noticed that NTW andNTS were very similar. Digging fur-ther, an analysis published by O’Reillyrevealed the kernel, and in fact everybinary file included in NTW, was iden-

tical to those shipped in NTS. The soledifference between the two products’cores lay in the operating systems’installation information. The serverversion contained several options orflags that marked it as either NTWor NTS. If the machine was flagged asNT Workstation, it would disable cer-tain functionality and limit the num-ber of network connections. Billed asa simple web server useful for personaluse, Microsoft’s Personal Web Server(PWS) included on NTW was, in fact,identical to the company’s enterprise-focused IIS shipped with NTS; whenIIS started on a machine flagged as

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NTW, it would proceed to eliminateand limit functionality. On NTS whereflags were set differently, new function-ality would appear, and limitations—including the ten-connection ceiling—disappeared.

The ability to run an unlimitednumber of connections, as well as manyof the other characteristics that differ-entiated NTW and NTS, are what Icall antifeatures. An antifeature, inthe way I use the term, is function-ality that a technology developer willcharge users to not include. It is moredifficult for Microsoft to limit Internetconnections than it is to leave themunconstrained, and the limit is notsomething that any user would request.DRM and Treacherous Computing sys-tems are, in many ways, extreme ex-amples of antifeatures. Users don’twant either and they are hugely expen-sive and extremely difficult for devel-opers to implement.

Region-coded DVDs, copy-protect-ion measures, and Apple’s optionalDRM music store—where users ini-tially paid more for the DRM-freetracks—are also excellent examples. Ittakes a large amount of work to buildthese systems and users rarely bene-fit from or request them. Like black-mail, users can sometimes pay technol-ogy providers to not include an antifea-ture in their technology.

But sometimes, as in the case withmany DRM systems, users cannot payto turn their antifeatures off at all! Anexample of such an antifeature can beseen in the fact that Mozilla and Fire-fox were blocking pop-ups for years be-fore Microsoft got around to addingthe feature to its competing InternetExplorer browser. Despite the factthat Firefox has become fancy aboutpop-up blocking recently, simply not

showing pop-ups (i.e., the way thefeature was originally implemented inMozilla and celebrated by users) is eas-ier than showing them. Microsoft heldback not because it was difficult, butbecause others parts of Microsoft, andtheir partners, used and made moneyfrom pop-ups. Ultimately, Microsoftlost droves of users to the free alterna-tive that was willing to put users first.Until 2005, another proprietary webbrowser, Opera (which offered pop-upblocking before Firefox did) displayedan irremovable banner advertisementunless users paid for premium versionof the software. No users liked the ban-ners, and obviously, it’s more difficultto show advertisements than it is toleave them out.

Unfortunately, for the companiesand individuals trying to push antifeat-ures, users increasingly often have al-ternatives in free software. Softwarefreedom, it turns out, makes antifeat-ures impossible in most situations. Mi-crosoft’s predatory NT pricing is im-possible for GNU/Linux, where userscan program around it. A versionof Firefox funded by advertisementswould be too—users would simplybuild and share a version of the soft-ware without the antifeatures in ques-tion. Ultimately, the absence of simi-lar antifeatures form some of the easi-est victories for free software. It doesnot cost free software developers any-thing to avoid antifeatures. In manycases, doing nothing is exactly whatusers want and what proprietary soft-ware will not give them.1

1web.archive.org/web/20010708214136/

www.zdnet.com/eweek/news/0826/26lic.

html ftp.ora.com/pub/examples/

windows/win95.update/ntwk4.html www.

oreilly.com/news/differences_nt.html

tim.oreilly.com/articles/10-conn.html

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The GNU AGPL

by Brett Smith

Licensing Compliance Engineer

We recently published the GNUAffero General Public License,

version 3. You can find it at fsf.org/licensing/licenses/agpl-3.0.html.It has the same conditions as GPLv3,with an additional term that requiresyou to make sure that, when you mod-ify the program, it offers its source tousers who interact with it over a net-work.

This is a spiritual successor to theoriginal Affero General Public License,which was based on GPLv2 and alsohad an additional provision so thatpeople using the software over a net-work could get its source. However,the new license also offers several im-

provements over its predecessor. First,all the benefits of GPLv3 exist inAGPLv3 as well: internationalization,protection against tivoization, strongdefenses against patent aggression, andso on.

Second, AGPLv3 has a broaderscope. The original Affero GPL wasdesigned primarily for web applica-tions; it stated that users had to beable to “request immediate transmis-sion by HTTP of the complete sourcecode,” making it hard to adapt for pro-grams using other protocols. AGPLv3instead simply requires that the pro-gram “prominently offer all users . . . anopportunity to receive the Correspond-ing Source of your version by provid-ing access to the Corresponding Sourcefrom a network server. . . ” This is aflexible requirement that any network-

7

capable software should be able to han-dle with relative ease.

Third, AGPLv3’s new require-ment degrades gracefully. If you useAGPLv3-covered code in a programthat doesn’t interact with users over anetwork, there are no additional obli-gations for you to meet. You can shareand modify the program under thesame conditions that apply to GPLv3-covered software.

Finally, you can combine modulesreleased under AGPLv3 and GPLv3.Programmers who want to use AG-PLv3 for their own work can take ad-vantage of the many libraries and othersource files available under GPLv3.And developers working on GPLv3-covered projects will often be ableto use the AGPLv3-licensed moduleswith minimal hassle as well, since AG-PLv3’s additional term has no require-ments for software that doesn’t inter-act with users over a network.

This isn’t a complete solution forbringing freedom to web services. Un-fortunately, the current architecturethat we use to build network applica-tions is inherently unfriendly to users’freedom. Generally, all the code anddata lives on someone else’s server, un-der their control and out of yours. Youcan never be completely free in such anenvironment.

However, AGPLv3 advances a vi-sion of how freedom works in the com-puting environment of today and to-morrow. Before this, GPLed webapplications provided a lot of goodfor 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 thefree software MediaWiki code also runsCitizendium, Conservapedia, and the

GPLv3 Wiki. After SourceForge re-leased their code as free software, peo-ple started creating alternatives to thesite, some of them more featureful thanthe original.

AGPLv3 takes that one step fur-ther by putting developers on a morelevel playing field. One of the reasonsthe GPL has been such a successfulfree software license is because it cre-ates an environment where people feelcomfortable contributing—they knowthat everybody else will play by thesame rules. By making sure that de-velopers at least have access to source,AGPLv3 will similarly enable peopleto create communities around network-centric applications that are focused onfreedom.

A big conversation about freedomon the network is beginning. We thinkthat AGPLv3, and the code that usesit, will add a lot to the discussion, butthat’s not going to be the end of it.We’re looking forward to new technol-ogy that can provide the benefits ofweb services but keep control in users’hands. We also want to see what com-munity norms take shape around thiskind of software—what you all thinkdeployers ought to do, and what itwould be nice of them to do. There’sa lot of exciting work ahead, and wehope you’ll join us in it. Together, wecan build software that gives its usersboth convenience and freedom.

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Interview: Rob Myers

Interviewed by Matt Lee

Campaigns Manager

Rob Myers is an artist, hacker andfree culture activist who has been

remixing images and coding up artfor more than fifteen years. He heldthe first solo all-copyleft-licensed artshow, has been involved with commu-nity projects such as Free Culture UKand Remix Reading, and has advisedon corporate projects such as “WhereAre The Joneses?” and “4Laughs.”

Matt: Rob, you are known tomany for your commentary on free cul-ture, both on and offline. I imagineyou interact with this community a lot,what is that like?

Rob: It’s always good to find outhow free culture touches on differentpeople’s interests, not just activists’.One of the best discussions of musiccopyright I’ve had was with the driverof a bus I was on who turned outto be a Beatles fan and knew aboutthe George Harrison “My Sweet Lord”case. Another time I spoke to anartist at her private view who’d almostlost her funding for that show becausethe funding body wanted her to trackdown every single copyright holder and

get permission from them for all thefound video footage she’d used.

People have different views on howfree culture should be approached, anddiscussing my own views with othersis a way of learning about the issuesand keeping honest. Finding out howthings are different around the worldhelps to keep a sense of perspectiveas well. When I talked about Cre-ative Commons licenses in Serbia, peo-ple just laughed and told me that copy-right didn’t apply there. In the UK theactivity around the Gowers Review Of“Intellectual Property” was very posi-tive.

Matt: As an author, both onlineas well as in occasional printed form,what are your thoughts on eBooks andeBook readers like the Amazon Kin-dle?

Rob: As someone who has beenthrough art school and designed booksand other materials for print, I reallyappreciate the different qualities of pa-per and ink. I love finding an old Art &Language monograph in a book stall.But I also enjoy being able to get clas-sic texts from Project Gutenberg andread them or search them or feed theminto a Markov chain. And having refer-ence works in electronic format is very

9

convenient. I think eBooks comple-ment and extend what is possible withphysical books rather than replacingthem entirely.

What breaks the commercializationand wider adoption of eBooks, thesame as it did for digital music for-mats, is DRM. I’ve owned physicalbooks with anti-photocopying printingor with restrictive licenses printed inthem and that is bad but it is nothingcompared to DRM.

Kindle, as well as being a hor-rible piece of industrial design witha disempowering user experience, isencumbered with DRM. I just hopethat Amazon follow the same path,away from DRM, that Apple seemsto be following. But that will takecompetition—and with a few notableexceptions, the other eBook vendors allseem to be using DRM as well.

I want DVD-style special editionsof print books as eBooks, I want thepotential of hypertext to be realized,and I want a good platform for gen-erative literature all on something likea Kindle but with industrial design byIDEO and software by GNU. I don’twant my old ASCII files uploaded toAmazon, made useless by the additionof DRM, then downloaded to some-thing that I’d be embarrassed to beseen on the tube with.

Matt: What do you think oftivoization? What does it mean forfree culture?

Rob: I don’t understand people,usually developers, who want to priv-ilege Tivo’s ability to modify softwarethat wasn’t theirs to start with overthe freedom of the actual users of thatsoftware to do the same. If those devel-opers had been in the position of theseusers when they wanted to develop thesoftware that they are happy to see

tivoized, they would not have been ableto. I’m very glad that GPLv3 tacklestivoization.

Tivoization can lock you out ofaccess to cultural work and personalmemorabilia that you own or have cre-ated. Its legal or technological formis unimportant when considering itspractical effects. This is true of DRMas well. Those within the free culturemovement can and should tackle theseissues alongside those within the freesoftware movement.

Matt: You’ve written a few piecesof free software for artists—most ofthese are now released under version3 of the GPL. What’s the hold up onMinara?

Rob: I regard software freedom asa principle to be protected rather thanas the product of a particular license.GPLv3 seems to be an effective andproportionate response to challenges tothat principle that have emerged overthe last decade or so. Arguing thattivoization or DRM are not or shouldnot be part of the GPL’s remit doesnot make sense: they are threats tothe freedom of software that didn’t ex-ist a decade ago in much the same waythat the threats to older versions of theGPL tackled didn’t exist forty yearsago.

Minara (Minara Is Not A RecursiveAlgorithm) is a programmable graph-ics program editor. A kind of Emacsfor vector graphics. The program, itstools, and the images it edits are allwritten in user-editable Scheme. I usedsome Scheme code from a third partythat seems to be GPLv2 only and Ineed to find the author of that code torelicense it. The moral of this is thatpeople need to make it clear that theircode is licensed GPL version x or later.

Matt: On the subject of the Ama-

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zon’s Kindle eBook Reader, Mark Pil-grim pointed out that “The Right ToRead” was supposed to be a warning,not a design document—what wouldbe your message to authors unawareof the dangers of DRM books?

Rob: Don’t mistake a protectionracket for job security. Find out whatauthors like Cory Doctorow have to sayabout the negative effects that DRMhas on your relationship with yourreaders and customers, and, look attheir examples of turning unauthorizedcopying into free promotion. Usingcopyleft and network effects to drivesales is a strategy that works, Has-bro adopted it for their relaunch ofthe Dungeons & Dragons game booksa few years back.

And don’t forget that DRM-freemusic still sells well and is now beingcalled for by music retailers as well asfans.

Matt: Finally, as web applicationsbecome increasingly common, whatdangers do you see ahead, as the pos-sibility of hosted graphics and designsoftware becomes ever closer? Do youthink the newly released GNU AfferoGPL will help?

Rob: Software as service may bethe next great threat to software free-

dom. It is tivoization for the web. Web2.0 may just be Google’s aftermarket—“economic heat noise” as Eben Moglenaccurately described it. But the trendto utility computing and The Cloudmeans that not just executable soft-ware but data will be locked away out-side of users’ control.

As an artist or author, I wouldn’twant to use hosted software or storemy work primarily on a hosted ser-vice. If there is an earthquake or aneconomic slump near my data center,I don’t want to lose my work.

AGPL will help with access to soft-ware, but not with access to data orcultural work, at least not directly.Common formats, web services, anduser rights charters are needed as muchas access to code—which you will needto pay for access to The Cloud to runanyway. Free culture can help both tomake the case for this environment andto provide and protect content for par-ticipants in it.

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Netflix Mini-Letter.

If you are a Netflix cus-

tomer, we encourage you

to cut out the mini-letter

letter on page two, sign-

it, and ship it off with

your next return-DVD. You

can find more mini-letters at

DefectiveByDesign.org.

Special Thanks to Randall Munroe,the author of xkcd, for allowing us touse and rearrange 1337: Part 4. See itall in one piece athttp://xkcd.com/344.

This bulletin was produced using

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Inkscape, GIMP, Imagemagick and

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and Perl.

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