The patent system’s “first braggart takes all” lottery (qualified in the United States into a “first braggart who invented anything at all takes all” congame) is a sensible system for encouraging technology transfer through the emigration of skilled artisans, which is the purpose for which the United States Constitution’s framers imagined Congress might want to use it. In relation to the way software is made in the age of the Internet it’s a deadly nuisance. It’s also an attractive one, shimmering like those limpid vitriolic pools of deadly poison under the hot sunlight of Kansas. Global IT companies plunged headfirst into the strangulating anti-commons of software patenting. In GPLv2, Stallman warned them not to, and provided in the license against the only harm he could then remedy. The companies went ahead anyway. And software patents—which prohibited independent reinvention and remixture, the essence of free technology and free culture—became a threat to freedom’s existence.
From the moment I first heard about software patents in 1991, I assumed we were doomed. Eben was more optimistic,
Richard Stallman told Steve Lohr of the New York Times in November 2005. As the global IT vendors holding the massive patent portfolios in software adopted the movement’s free technology, an interesting internal shift occurred. By the beginning of the 21st century, companies that had $100s millions or even $billions in patent license revenue realized that it was matched by revenue from operations built on free software that flourished in commons rather than anti-commons. And in the software anti-commons, everyone suffered from the trolls. Even Microsoft (which was late to the patent game for the same reason it was always late to everything, which was that no one was allowed to understand anything that Billg didn’t understand, because everything he didn’t understand was the worst fucking idea he had ever heard since he came to Microsoft, which meant that it was dead beyond appeal) suffered horribly from the trolls. That was the only good thing about trolls.
But other companies, those whose very existence wasn’t precluded by the facts of the 21st century, had no such incentive to fail at understanding. Even Hewlett Packard began to take a nuanced position on the relation between software and the patent system, quite a change for that growing collection of unprofitable computer companies hooked up to a monopoly pipeline in jaw-droppingly overpriced patented inkjet printer cartridges. “I’m beginning to think you were right all along,” one immense patent-holder’s chief software counsel told me in 2002, “software patents are more trouble than they’re worth.” That was another movement milestone: confirmation that when the time came to move for the outright destruction of the software patent system, we were going to have some of the world’s largest patent-holders on our side.