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Free software exception

Red alert.png What this entry documents is not a solution.
This practice may be ineffective or useless in the long term.
ESP's position is that abolition of software patents is the only solution.

An exception for free software would be good for one set of anti-software patents campaigners.

This proposal has been raised many times, but has not been pursued by any major campaign organisation (for example: ESP, FFII, FSF, and FSFE).


Some reasons why free software organisations do not pursue this idea:

  1. It strongly implies that software is patentable. (This might be the biggest problem)
  2. It requires a legal definition of "free software"
    • If this is botched, or later removed or declared invalid, point #1 will apply to free software too
  3. It puts the courts in charge of deciding if software meets the (legal) definition of free software
  4. Supporting this exception would cut that organisation off from the broader campaigns against software patents
  5. It's more work because it requires convincing legislators of two things:
    1. free software is special
    2. special software should be exempt from the patent system

Some additional reasons why organisations which are agnostic to software freedom do not pursue this (as, for example, a stepping stone):

  • It would leave the majority of the economic harms of patents
  • There are no well developed proposals

Is this compatible with TRIPS?

Article 27 says:

[...] patents shall be available and patent rights enjoyable without discrimination as to [...] the field of technology [...][1]

We always argue that software is not a field of technology (so that it's not included in TRIPS), but if someone argues for a free software exception, then that implies that software would be generally patentable (otherwise no exception would be necessary). If software is a field of technology, is free software also a (sub)field of technology? Probably.

But there's article 30:

Members may provide limited exceptions to the exclusive rights conferred by a patent, provided that such exceptions do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking account of the legitimate interests of third parties.

So, would an "if you respect people's freedom" exception be allowed?

What other exceptions have been allowed or rejected?

One example of an attempt at using this rule is the "curing epidemic" exception that some African countries with AIDS epidemics and no money thought of implementing. They were told 'No'. A new worldwide treaty had to be negotiated.

There might not be much hope of getting a freedom exception allowed. (But if you have information to suggest that it is possible, please add to this page! Thanks.)

Consequences with non-copyleft licences

With this sort of exception, if someone converted free software to proprietary software, they would lose the patent safety. Obviously, this can only happen to software under a licence that allows such conversion (X11, BSD, Apache...).

However, if they merged some free code with some non-free code, they could distribute the combined result plus the source code to just original free part, and this might be sufficient to benefit from the patent safety for the functionality of the free part. It would depend on how the law was written.

These consequences are seen as positive by some, and negative by others.

Related pages on ESP Wiki