Protecting FOSS as Digital Commons

The FOSS model of collaboration, community and shared ownership of knowledge has led to tremendous innovation. The Linux Foundation, a leading FOSS organization that hosts 300+ FOSS projects, estimates that these projects have created 1.15 billion lines of code worth $54 billion. Similarly, the Apache Software Foundation estimates that the 350+ projects it hosts have created FOSS worth $22 billion. While the Linux and Apache foundation projects add up to $76 billion worth of technologies, these foundations are a small part of the global FOSS universe. Therefore, the actual value of FOSS is likely to be far greater than this number because FOSS covers fundamental technologies from cloud computing, distributed computing, big data and analytics, blockchain technologies and many others.

Our modern digital world would be unimaginable without FOSS, which represents a wealth of technologies that can be used, modified, improved and shared by anyone for free. From stock exchanges to social media to search engines to supercomputers to the Mars Rover to airline scheduling to pandemic predictions, FOSS touches every aspect of our lives. FOSS is like air, or a meadow or a forest, a "digital commons," that is accessible to everyone. 

This "commons" nature is enshrined in the four freedoms of Free and Open Source Software (FOSS):

1. The freedom to run the program as you wish, for any purpose.

2. The freedom to study how the program works and change it so that it does your computing as you wish.

3. The freedom to redistribute copies so you can help others.

4. The freedom to distribute copies of your modified versions to others -- giving the whole community a chance to benefit from your changes.

However, this commons might be under threat from the growing number of software patents being granted in India. Patents are state granted monopolies for inventions that are novel, useful and non-obvious to a skilled practitioner in the art. In India, the length of patent validity is 20 years from the date of filing the patent application. During this period, the patent holder has exclusive rights to the invention, allowing them to prevent others from making, using, selling, or importing the patented invention without their consent. In other words, software patents are the exact opposite of FOSS because FOSS is an inclusive system while software patents are an exclusionary system.

On paper, Section 3(k) of the Indian Patents Act, 1970 says that, "a mathematical or business method or a computer programme per se or algorithms," are not patentable subject matter. In plain English, the term "per se" would be interpreted to mean that computer programmes are intrinsically not patentable. However, clever legalese is being used to circumvent Section 3(k) by disguising software patents as "system and method patents." Some of the patents reviewed by End Software Patents cover elementary functions like "A system and method for transferring knowledge," and "Method and system for publishing a message in an IM group using a chat robot." A casual review of these patents reveals absolutely mind boggling verbosity. For example, the patent on "transferring knowledge," runs into 46 pages and contains mundane steps and processes. A study (https://sflc.in/software-patents-in-india-law-and-practice/) that FOSS United had commissioned, and was researched by the Software Freedom Law Center (India) (www.sflc.in) finds that the number of software patents granted by the Indian Patents Office has been increasing steadily.

Even if you are a law abiding software developer who wishes to not violate patents, there is no way you can avoid them. Just as music is a combination of notes, software programs are a combination of multiple computing methods. The law abiding developer can spend hundreds of hours reading through software patents and yet have no clue which software patents they might be violating. It is for this reason that Richard Stallman, the father of the Free Software Movement, compares them to landmines (https://www.gnu.org/philosophy/fighting-software-patents.en.html). He says that each design decision carries a risk of stepping on a patent, which can destroy your project. "Developing a large and complex program means combining many ideas, often hundreds or thousands of them. In a country that allows software patents, chances are that some substantial fraction of the ideas in your program will be patented already by various companies. Perhaps hundreds of patents will cover parts of your program," says Stallman. If the patent holder decides to pursue a case against you, the costs of software patent litigation will consume significant chunks of your time and money (https://endsoftwarepatents.in/blog/litigation/software-patent-litigation-a-very-costly-affair).

Indian IT is built on the foundations of FOSS

Around 15-20 years ago proprietary software was the norm and FOSS was the exception. Today, the situation is completely reversed and FOSS has become the default model for software development. The biggest national level e-gov projects, and every Indian startup are built on the foundations of FOSS, while India's software services industry, which exported $150 billion worth of servies (https://www.rbi.org.in/scripts/BS_PressReleaseDisplay.aspx?prid=54338) makes extensive use of FOSS to build solutions for their customers. If software patents are allowed, it would turn the clock back to the era of expensive proprietary software, where one had no choice but to pay huge sums for operating systems, databases, middleware and other software. FOSS lowered the barriers to entry by reducing costs and the risk of vendor lock-in.

Software patents will give a narrow elite that has the time and money to file for software patents, the power to exclude others from using the computational methods that they have patented. The court cases and royalty payments that will inevitably follow software patents, will drive up the costs of doing business,  and increase financial and business risks for Indian companies. It will also not add much value to our economy because software is an applied form of mathematics and logic.

Globally, patents are not granted on math and logic because their unfettered use is considered essential for human progress. It would be a strange world indeed if we grant patents on math and logic merely because they are now embedded in software. Software is protected by copyrights and trade secrets, which are better suited to protecting abstract ideas like software. Researchers like Bessen and Meurer, authors of the book, Patent Failure , have pointed out that patents do not serve as a vehicle for protecting software because it is hard to draw boundaries around abstract ideas. This lack of boundaries results in the fact that software is the most litigated category of patents. The Indian government, industry and startups have benefited immensely from FOSS. Therefore, we believe that allowing software patents in India would hinder key government initiatives like Digital India, Startup India and Atmanirbhar Bharat.

We therefore request all those interested in protecting FOSS and developer freedoms to support us (https://endsoftwarepatents.in/support-us/new) in stopping software patents and preventing the encroachment of our digital commons.

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1 - See the Linux Foundation homepage at https://www.linuxfoundation.org. Accessed on 5th May, 2022.
2 - See the Apache Foundation homepage at https://apache.org/. Accessed on 5th May, 2022.