ESP Wiki is looking for moderators and active contributors!

Freedom of expression

Revision as of 03:33, 17 May 2022 by Panos Alevropoulos (talk | contribs)
(diff) ← Older revision | Latest revision (diff) | Newer revision → (diff)

Software patents severely undermine people's freedom of expression. Patent rights can prohibit people from building websites, publishing videos, publicly discussing software development, and helping people to use software.

First Amendment

Professor Chiang of Antonin Scalia Law School argues that free speech is directly affected by patents.[1]

The existing literature on the interaction between intellectual property law and the First Amendment almost always operates with the explicit or implicit assumption that patent law has no free speech issues. This assumption is not only wrong but backwards. Far from being no threat to free speech, patent law poses a greater threat to free speech than copyright law, both because patent protection is inherently stronger than copyright protection, and because patent law has developed none of the internal protections for free speech that copyright law has.

Judge Mayer has opined against software patents on the premise that they violate the freedom of speech.[2][3]

Patents, which function as government-sanctioned monopolies, invade core First Amendment rights when they are allowed to obstruct the essential channels of scientific, economic, and political discourse. [...] Suppression of free speech is no less pernicious because it occurs in the digital, rather than the physical, realm. [...] Like all congressional powers, the power to issue patents and copyrights is circumscribed by the First Amendment. [...] [R]estrictions on subject matter eligibility [should] be used to keep patent protection within constitutional bounds. Most of the First Amendment concerns associated with patent protection could be avoided if this court were willing to acknowledge that Alice sounded the death knell for software patents. [...] Given the vast number of software patents—most of which are replete with broad, functional claims—it is virtually impossible to innovate in any technological field without being ensnared by the patent thicket.

Patent advocates reacted vehemently to Mayer's opinion, arguing that free speech is not absolute and that he misinterprets Alice and other decisions of the US Supreme Court.[4][5] These hot-tempered posts failed to address Mayer's arguments on how expensive litigation and the sheer number of software patents prohibit the software industry from writing code in practice.[6] Patent attorneys very frequently interpret the law in ways that allow them to defend a broken system.

Access to communication technology

See also: Micro-blogging patents

Most modern communication systems are based on software. If only MyCompany can use a certain communication method, then anyone who can't afford the software of MyCompany, or anyone who objects to using the software of MyCompany is excluded from certain types of communication.

This article might provide an example:

Discussing software development

If something is patented, then you might not be able to publish a sensible discussion about it (See for example Andrew Tridgell's VFAT patch FAQ on LKML, the Linux Kernel Mailing List about avoiding Microsoft's FAT patents.

Sharing source code is an important part of understanding a program. Patents inhibit education by not allowing people to learn about software.

A clear example when Roy van Rijn got a legal threat just for blogging about software he was writing which he hadn't even published yet:

Discussing software use

In i4i v. Microsoft in the 2009 USA, when Microsoft lost, the judge noted that Microsoft was thereby prohibited from providing technical support for an aspect of their .docx format that is patented by i4i inc. "providing support or assistance to anyone that describes how to use any infringing and Future Word Products to open an XML file containing custom XML".[7]

Inducement worries

As described in the 2008 amicus brief by the American Civil Liberties Union[1] for the in re Bilski case, because "inducement to infringement" is a crime in the USA, sharing technical information about a possibly-patented idea could lead to an infringement suit.

Source code may be speech

According to the SFLC:[8]

First, source code, like the patent disclosures themselves, teaches how the invention works, rather than being the invention. If source code standing alone can infringe the patent, it is difficult to understand how handing out photocopies of the patent itself wouldn’t infringe. Second, in the US, courts may find source code to be speech, as we believe they should find, thus making source code subject to First Amendment protection. [...Furthermore...] liability for patent infringement can be imposed where one enables or encourages another to infringe a patent, but the requirements of knowledge and intent are more strict in secondary liability situations. Because a user must first compile the source code and install the software in order to infringe, a court is less likely to hold the community liable for inducing or contributing to the infringement.

See also


  1. Chiang Tun-Jen, Patents and Free Speech[PDF], Georgetown Law Journal, Vol. 107, No. 2, 2019, p. 363, doi:10.2139/ssrn.3114931.
  2. Intellectual Ventures I LLC v. Sumantec Corp., 838 F.3d 1307 (2016).
  3. Jeong Sarah, A judge wants to make patent trolling a first amendment issue[archived],, 2016-10-07.
  4. Borella Michael & Lyons III George, Intellectual Ventures I LLC v. Symantec Corp. -- Judge Mayer on the First Amendment[archived],, 2016-10-26.
  5. Quinn Gene, It is time for Judge Mayer to Step Down from the Federal Circuit[archived],, 2016-10-06.
  6. Burk Dan L., Patents and the First Amendment[PDF], Washington University Law Review, Vol. 96, No. 2, 2018-02-01, p. 200, doi:10.2139/ssrn.3119362.
  7. Crouch Dennis, Microsoft Ordered to Stop Selling MS Word[archived],, 2009-08-12.
  8. Debian Patent Policy FAQ[archived],, 2011-07-04.

External links