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Patent Absurdity/Français (French)

Revision as of 18:54, 18 April 2010 by Echarp (talk | contribs) (Jusqu'à 5:07)

[0:02 - 0:06] [Washington D.C., 9 novembre 2009]

[0:09 - 0:15] [Ces personnes font la queue pour écouter les arguments oraux dans la première affaire concernant les brevets logiciels à être portée devant la Cour suprême des États-Unis depuis presque 30 ans.]

[0:14 - 0:16] Journaliste: Messieurs, voulez-vous dire qui vous êtes et épeler vos noms?

[0:15 - 0:17] Journaliste: vos noms, vos titres et toutes les bonnes choses?

[0:17 - 0:21] Bilski : Je suis Bernie Bilski, B I L S K I

[0:23 - 0:30] Warsaw : Rand, R A N D, Warsaw, W A R S A W

[0:31 - 0:32] Journaliste Pourriez-vous nous résumer ce que vous avez inventé ?

[0:33 - 0:58] Warsaw : L'invention est une facture énergétique garantie,

[0:36 - 0:38] qui est comme une facture budgétisée sans ajustement,

[0:39 - 0:42] et c'est une méthode pour couvrir les deux parties dans la transaction.

[0:43 - 0:45] Ainsi, en plus de donner aux consommateurs, consommateurs d'énergie,

[0:46 - 0:49] une facture énergétique garantie, il y a toutes sortes de mécanismes,

[0:50 - 0:52] et les mécanismes impliquent des transactions financières

[0:53 - 0:56] entre la consommation d'énergie ou tout consommateur d'énergie

[0:57 - 0:58] et les fournisseurs d'énergie.

[0:59 - 1:03] [Ces hommes espèrent gagner un brevet sur une méthode d'affaires sur la couverture des risques.]

[1:03 - 1:07] Warsaw : Et voilà en résumé ce qu'est l'invention. C'est une méthode pour générer des factures garanties pour les consommateurs et aussi protéger les revenus des entreprises d'énergie.

[1:13 - 1:16] [L'aboutissement de cette affaire aura de profondes implications pour le logiciel]

[1:17 - 1:19] Dan Ravicher (Public Patent Foundation) : L'affaire Bilski elle-même est que, quelqu'un a déposé un brevet

[1:20 - 1:24] sur une méthode d'affaires ou un logiciel et l'office des brevets l'a rejeté.

[1:25 - 1:27] Et maintenant cette personne porte plainte contre le bureau des brevets, en disant :

[1:28 - 1:29] « Vous devez m'accorder ce brevet. »

[1:30 - 1:33] Cette affaire parle de ce que cela signifie que d'être un « procédé » brevetable.

[1:34 - 1:37] Et ainsi, puisque les brevets logiciels font partie de la catégorie des procédés –

[1:38 - 1:40] parce qu'il ne sont pas une machine ou une composition de la matière,

[1:41 - 1:43] qui font partie des autres catégories de choses brevetables —

[1:44 - 1:46] cette affaire va définir ce que cela signifie que d'être un procédé brevetable.

[1:47 - 1:53] [Absurdité patentée des brevets – comment les brevets logiciels ont cassé le système…]

[1:52 - 1:54] Journaliste: à propos du juge Roberts, qui dit qu'en gros votre brevet implique

[1:55 - 1:57] des personnes prenant leur téléphone et appelant d'autres personnes.

[1:57 - 1:58] J. Michael Jakes (Avocat pour Bilski): cela pourrait être réduit à ce niveau,

[1:59 - 2:00] comme à certains actes que l'on doit accomplir,

[2:01 - 2:02] mais c'est bien plus que cela.

[2:03 - 2:05] Cela a à voir avec vendre des biens à un prix fixé à une partie,

[2:06 - 2:09] vendre à une autre partie à un prix fixé différent,

[2:10 - 2:11] identifier les positions contraires à risque.

[2:12 - 2:13] Si vous regardez à la revendication quatre dans le brevet --

[2:14 - 2:17] nous avons des choses appelées "revendications" qui décrivent ce que le brevet est --

[2:18 - 2:19] il y a une longue formule mathématique dedans --

[2:20 - 2:23] qui n'existait pas dans la nature ou n'importe où dans la littérature -

[2:24 - 2:28] que ces gens très inventifs ont trouvé.

[2:28 - 2:29 Ben Klemens - auteur, 'Maths que l'on ne peut pas utiliser': il était une fois, les mathématiques n'étaient pas brevetables, et maintenant elles le sont.

[2:30 - 2:32] Et nous pouvons avoir quelqu'un comme Bernard Bilski apparaissant ete disant:

[2:33 - 2:36] « oui vous savez, j'ai travaillé dur sur cette équation mathématique,

[2:37 - 2:41] et donc je devrais avoir un brevet sur cette méthode de traitement de l'information là ».

[2:42 - 2:45] Journaliste: Vous mentionnez dans votre revendication qu'il y a un très long calcul montrant que...

[2:45 - 2:46] Jakes: Il y a...

[2:46 - 2:50] Journaliste: Pensez qu'un fort calcul ou de bonnes mathématiques soient une base pour un brevet?

[2:50 - 2:51] Jakes: cela peut.

[2:51 - 3:02] Ben Klemens: Le processus de base pour écrire un logiciel est, vous prenez un large algorithme d'une certaine sorte, vous savez, les moyens de faire quelque chose de données abstraites, et ensuite vous appliquez des noms de variables.

[3:02 - 3:21] Ben Klemens: Pour une première dérivation, commençons avec une simple matrice, une matrice de valeurs, et nous trouverons la moyenne de chaque colonne, nommées mu1, mu2, mu3. Et nous trouverons que Y = (X - mu) pour chaque colonne.

[3:21 - 3:32] Maintenant, si nous avons un autre facteur X, nous pouvons prendre X fois S et trouvons la projection de S sur l'espace, c'est ce qu'on appelle la décomposition en valeurs singulières (S.V.D.).

[3:32 - 3:35] A présent, voici l'astuce, le gros morceau.

[3:35 - 3:50] A présent disons que la première ligne, X1, est égal à "sexualité", X2 est à égal à "possédez vous des chats?", X3, je ne sais pas, "affection".

[3:55 - 4:06] Ok, maintenant nous allons aussi dire que prenons un vecteur J1 égal à Jane, les réponses de "Jane" à ce questionnaire.

[4:06 - 4:10] Disons que J2 égal aux réponses de "Joe".

[4:10 - 4:13] Maintenant faisons la même projection que nous avons faites avant.

[4:13 - 4:22] Nous allons prendre J1 fois S, moins J2 fois S (J1xS - J2xS),

[4:22 - 4:25] nous allons trouver la distance entre ces deux points,

[4:25 - 4:27] et nous appellerons cela "compatibilité".

[4:27 - 4:37] Et dans cette simple étape, nous avons dérivé le brevet numéro 6735568.

[4:37 - 4:44] L'astuce de notre dérivation est que avant, avec la décomposition en valeurs singulières, nous avions des nombres abstraits.

[4:44 - 4:49] Ce que les gens à eHarmony ont fait pour avoir ce brevet, a été d'assigner des noms à nos variables.

[4:49 - 4:52] Donc au lieu d'avoir un X1 abstrait nous avons "sexualité",

[4:52 - 4:56] au lieu d'avoir un X2 abstrait nous avons "une préférence pour les chats".

[4:56 - 5:07] Et en faisant ces assignations, en établissant des noms de variable de cette manière, ils ont été capable de prendre un concept abstrait, et d'en faire un appareil brevetable.

[5:07 - 5: 46] Ben Klemens: What we want to do, according to the heads of our patent institutions, is take mathematics and slice it up into as many slices as possible and hand those slices out and say, well if you do a principal component analysis, if you multiply matrices for, uh, for dating sites, well ok, we give that to eHarmony. If it's for equities we'll give that to State Street. And so on and so forth. And uh, what we're giving out is basically exclusive rights to use mathematics, to use a law of nature, in whatever context. And what we're getting in return is basically nothing.

[5:46 5:48] [How did we get to this point?]

[5:47 - 5:52] Mark Webbink - Central for Patent Innovations: A patent a is government grant, and in the U.S. it rises out of the constitution.

[5:53 -6:08] Dan Ravicher: The Framers included a provision for granting exclusive rights to inventors in our constitution. The belief was that that was important in order to reward people who had made technological advances that would benefit society.

[6:09 - 6:12] [Patent Act - Federal Hall - April 10, 1790, An act to promote the progress of useful Arts]

[6:12 - 6:20] Webbink - New York Law School: The rights that are granted are not the rights to do the thing that they invented, but the right to exclude others from doing that thing.

[6:20 - 6:35] Eben Moglen - Software Freedom Law Center: So the idea was, you have a machine or a thing, which is not previously described in any literature, and which no skilled mechanic could figure out how to make, given what is described in the literature, and for that you get a patent.

[6:35 - 6:45] Webbink: The basis for determining what is patentable subject matter has continued to evolve over the last 200 years of our national existence.

[6:46 - 6:56] Moglen: In 1953 the Patent Act was modified by Congress to add the words "or processes" to the word "product" in describing what could be patented.

[6:56 - 6:58] [Patent Act - Federal Hall - April 10, 1790: An Act to promote the progress of useful Arts.]

[6:58 - 7:04] [Patent Act amendment - Capitol Building - July 19, 1952: Along with 'machine', 'manufacture' or 'composition of matter', a 'process' is included as patentable statutory subject matter.]

[7:04 - 7:18] The Congress which did that was plainly thinking about processes of industrial manufacture, processes that produced something at the other end. Float glass on molten tin and it will become flat or whatever.

[7:19 - 7:35] Webbink: And it's unlikely that anybody thought of "process" at that time in terms of computer software because we didn't have applications on computer software for many years after that last revision of the Patent Act.

[7:36 - 7:37] [Patent Act amendment - Capitol Building - July 19, 1952: Along with 'machine', 'manufacture' or 'composition of matter', a 'process' is included as patentable statutory subject matter.]

[7:37 - 7:47] [Gottschalk v. Benson - Supreme Court - 1972: Respondents' method for hexadecimal conversion merely a series of mathematical calculations or mental steps does not constitute a patentable "process" within the meaning of the Patent Act]

[7:45 - 7:53] Dan Bricklin - the first PC spreadsheet: Back in the late 70s the patent law was interpreted such that you couldn't patent software. It was considered mathematical algorithm or law of nature.

[7:53 - 7:54] [Gottschalk v. Benson - Supreme Court - 1972: Respondents' method for hexadecimal conversion merely a series of mathematical calculations or mental steps does not constitute a patentable "process" within the meaning of the Patent Act]

[7:55 - 8:01] [Parker v. Flook - Supreme Court - June 22, 1978: A mathematical algorithm is not patentable if its application is not novel]

[8:01 - 8:10] Moglen: The legal world changed. The environment was quite different starting with some decisions by the Supreme Court like Diamond v. Diehr.

[8:11 - 8:36 ] Karen Sandler - Software Freedom Law Center: The patent applicant was coming in with a new process for curing rubber. The temperature and the preciseness of the temperature is essential in curing rubber well, and the innovation that was being patented in this case was an algorithm to monitor a thermometer that was basically in the process and determined when the rubber needed to be released and cooled.

[8:37 - 8:47] Richard Stallman - Free Software Foundation:And they said processes for curing rubber are patentable, there's nothing new about that, the fact that they use a computer in implementing it shouldn't change anything.

[8:47 - 8:48] [Parker v. Flook - Supreme Court - June 22, 1978: A mathematical algorithm is not patentable if its application is not novel]

[8:48 - 8:55] [Diamond v. Diehr - Supreme Court - March 3, 1981: The working of a machine is patentable, whether it is controlled by a human or a computer]

[8:56 - 9:17] Mishi Choudhary - Software Freedom Law Center: The Supreme Court makes it clear that you cannot patent software because it is only a set of instructions or (?) and abstract laws of nature, algorithms aren't patentable in the U.S. itself. And, however, then there was the creation of the Court of Appeals for the Federal Circuit.

[9:17 - 9:52] Moglen: The problem being solved, in some sense, begins with the fact that trial court judges always hate patent cases. And the reason trial court judges hate patent cases is for a single trial judge -- a lawyer who has spent his or her life doing litigation -- a patent case in which she or he is going to be required to find detailed facts about how paint is made or how computers work or how radio broadcasting operates is an opportunity just to be made into a fool.

[9:53 - 9:54] [Diamond v. Diehr - Supreme Court - March 3, 1981: The working of a machine is patentable, whether it is controlled by a human or a computer]

[9:54 - 10:00] [Creation of US Court of Appeals - Federal Circuit - April 2, 1882: Creation of the US Court of Appeals for the Federal Circuit]

[9:59 - 11:04] Moglen: Congress is attempting to change the system in which patent cases are litigated. But instead of changing who tried patent cases, Congress left the non-specialist district judge in charge of the trial. And then created a new Court of Appeals called the Federal Circuit whose job it was to hear all appeals from patent cases. Rapidly of course this court filled up with patent lawyers. And the patent lawyers then made the law in the Court of Appeals that applied to all those district judges who where still making non-specialist decisions of which they were afraid. Naturally the Federal Circuit turned out to be a place which loved patents, and its chief judge Giles Rich, who lived to be very, very old and died in his late nineties, was a man who particularly loved patents on everything. The Federal Circuit court under Giles Rich sort of broke Diamond against Diehr loose from its original meaning and came to the conclusion that software itself could be patented.

[11:05 - 11:09] Choudhary: The Supreme Court left basically everything to this court to decide.

[11:09 - 11:19] Ravicher: The pizio (?) actually used to reject patents on software, like in early 1990's. And they did not allow them, and the applicants would appeal those rejections to the Federal Circuit.

[11:19 - 11:20] [Creation of US Court of Appeals - Federal Circuit - April 2, 1882: Creation of the US Court of Appeals for the Federal Circuit]

[11:20 - 11:27] [In re Alappat - Federal Circuit - July 29, 1994: Installing software on a computer makes a "new machine", which is patentable]

[11:28 - 11:35] [In re Lowry - Federal Circuit - August 26, 1994: The data structure of a computer's hard drive constitutes a "machine" that is eligible for patentability]

[11:36 - 11:42] [State Street v. Signature Financial - Federal Circuit - July 23, 1998: A numerical calculation that produces a "useful, concrete and tangible result", such as a price, is patent-eligible]

(...)

[16.27 - 17:45] RMS: Let's imagine that in the 1700s the governments of Europe had decided to "promote" the progress of symphonic music (or as they thought promoted) with a system of musical idea patents, meaning that anyone who could describe a new musical idea in words could get a patent, which would be a monopoly on that idea, and then he could sue anybody else that implemented that idea in a piece of music. So, a rhythmic pattern could be patented or a sequence of chords or a.. a set of instruments to use together or any idea you could describe in words. Now, imagine that it is 1800 and you are Beethoven and you want to write a symphony. You are going to find that it is harder to write a symphony that you won't get sued for than write a symphony that sounds good. Because to write a symphony and not get sued, you are going to have to thread your way around thousands of musical idea patents. And if you complained about this, saying this was getting in the way of your creativity, the patent holders would say, "Oh, Beethoven, you are just jealous because we had these ideas before you. Why should you steal our ideas."

[17:46 - 18:10] Ciaran O'Riordan, End Software Patents: People have been making music for .. for thousands of years. There were never, there was never any need for patents in the field of music. And since the computer industry has made programming impossible, people have been developing software as well. For instance, right since its beginning, there was never a need to have (word not understood (?)) patents in this field, in order for the activity to happen.

[18:11 - 18:49] Moglen (?):Of course everything we were doing, back before 1980, 1981, in those things, patents played no role in it. Cut and paste the embedded ruler in word processing, word wrapping - a lot of the things that are really important and we take for granted and that are much, much more innovative in many ways than many patents that we have today, because patents can be on some very, very minute - minute things, and that's the way the law works. Those things happened, we had great advances without patents.

[18:50 - 19:17] Robert Tiller - Red Hat: one of the world's most respected computer scientists Donald Knuth has said that if software patents had been available in the 1960' and 70's when he was doing his work, that is probably the case that computer science wouldn't be where it is today. There would be blockades on innovation that could seriously have prevented the kinds of technical solutions that we take for granted today.

[19:17 - 19:28] Moglen: The programmer writing a long program might conceivably need to check whether 500 or a 1000 different techniques of patent apply (?). Then there is no way that she possibly could.

[19:28 - 19:43] Ravicher: The Patent Office issues hundreds of software patents all the time. Every Tuesday, they issue 3500 patents, and a large and a large number of those relate to software. It's just impossible to review all those patents every week, to make sure you're not doing something that could infringe them.

[19:43 - 20:31] Sandler: So there is a provision in the US patent laws that, basically (19:49: 2 words not understood (?), I guess, imposes greater liability if they're shown to willfully infringe. So, basically, the idea is that if you knew about a patent and you infringed on it, you should have a stricter penalty than if you didn't know about them. But what this results in is this situation where there is a real disincentive to follow what patents have been made, what new inventions there have been through the patent system. Because, if you read every patent, then - or there's evidence that you have read patents - then you are liable for willful infringement, then you knew about the patent and you infringed it anyway. And the penalty is trebble damages.

[20:31 - 20:40] Unidentified voice (?): If a member of the (some words not understood (?)) suggested that software shouldn't (some words not understood (?)). Can you comment on that?

[20:40 - 20.54] Jakes: Yes, well, I obviously disagree with that, and I don't believe that software should ever be removed. It's one of our great resouces of technical innovation in this country. And to come up with a test that would somehow eliminate software would, I think, be a disaster for the economy.

[20:55 - 20:57] [Would it though?]

[20:55 - 21:40] James Bessen - author, 'Patent Failure': You know, Mike and I estimate from pharmaceuticals and chemicals, the patents (21:00"over software or anything like that, tender"(?)) 20% tax. You know, so you can think of that - you know, the small developer is developing something - down the road he'll have to pay that tax. Then, you know, every small company I know in software, as long as they have been around a few years and hit the market, somebody is asserting a patent against them. They're running into some potential difficulties. They feel - very frequently feel obligated to get patents themselves for defensive purposes. So all of that activity is a tax. It's something that's not helping them innovate. It's - you know - an unnecessary activity.

[21:41 - 21:43] [Best practical]

[21:41 - 22:49] Jesse Vincent - Best Practical: The primary thing we do is an issue-tracking system called (21:44 "RTU"(?)) quest tracker. So it's customers' service, help desk, bug tracking, network operations. Everything where you've got a whole bunch of tasks that you need kept track of, and you need to know what happened, what didn't happen, who did it, who didn't do it, when. It's like a kind of to-do list on steroids, designed for a whole organization. Pretty much everything is Open Source or Free software, under one license or another, We will get consulting customers or support customers, who add indemnification language to our standard contract or need us to sign theirs. And it says that - you know: the standard legalese - it's going to say something like: we indemnify (22:28: some words not understood) and agree to pay their legal fees and sacrifice our first-born if something happens and someone discovers that our software is violating a patent, is violating somebody else's patent. It's very very rarely that we end up signing something that has that kind of language in it, but it eats up a lot of legal fees.

[22:49 - 23:02] Michael Meurer - author, 'Patent Failure': Look at the innovative people in software, in ICT, and ask: "Would they be better off if the patent system was abolished?" The answer is probably "yes".

[23:03 - 23:37] Bessen: Who's benefiting? Patent lawyers, number 1; number 2, you have a small number of so-called "trolls" who are benefiting, but it's not clear that even most of them make - are making much money. You see more recently, in the last 4-5 years, companies like intellectual ventures and hedge funds who are acquiring large volumes of these trash patents and using them to extract hundreds of millions of dollars from companies. They benefit, they may be the biggest beneficiaries.

[23:38 - 23:51] Ravicher: You know, there is a lot of bad press in the last few years about the harm that's caused by software patents. And you'd think that's how the political influence on the Patent Office (? 23:45) to get them to slow down their issuing and start rejecting. And that's what resulted in the Bilski case.

[23:52 - 23:59] [In re Bilski - Federal Circuit -October 30, 2008: Inventions must be tied to a particular machine or transform something. "Useful, concrete and tangible result" of State Street is inadequate.]

[24:00 - 25:13] Ravicher: Well, the biggest first bad press story was the Blackberry patents, where all the Congressional representatives have their Blackberries, and there is a company called NTP that sued the manufacturer of Blackberry, saying that all Blackberries infringed its patent. Well, NTP was this company which is just a 1-person holding company. They didn't make any products or services themselves. And so, this got a lot of attention: it was in the Wall Street Journal, in the Washington Post. And Congress persons were really upset that they lose their Blackberry and they may not be able to communicate efficiently. And so that caused a lot of attention. Then you had all these patents on, like, banking methods and imaging for cheques that those patent holders have been asserting against the banking industry. And the banking industry had a lot of influence on Capitol Hill. So they've been going down there and saying: "Look, these kind of patterns are causing us lots of harm." Then you add into that the whole "patent troll" (24:52 "In the issue of ..." (?)) taxes, with small patent holders suing large IT companies, like Google and Microsoft and IBM and Hewlett-Packard. All these companies also have legislative influence. And they've said, you know: "These kinds of patents are causing real harm to our business. They're costing us jobs, an increase in the price of products and services that we offer to our customers, and you need to do something about it.

[25:13 - 25:14] [In re Bilski - Federal Circuit -October 30, 2008: Inventions must be tied to a particular machine or transform something. "Useful, concrete and tangible result" of State Street is inadequate.]

[25:14 - 54:20] [Bilski v. Kappos - Supreme Court - 2010: Supreme Court may affirm their previous rejections of software patents, or decline to decide this issue.]

[25:21 - 26:06] Peter Brown - Free Software Foundation: The situation we find ourselves in is that the Lower Court, the Court of Appeal of the Federal Circuit, is essentially a court for patents, for hearing patent cases. And this is the first time that the Supreme Court has taken up that scope of (25:39 "patentability" (?)). And specifically, this test that was implemented by the Lower Court does talk (?) to software patents. And so, there is practically a 20-years history of software patents being granted due to the Lower Court. And so we are hoping that the Supreme Court clear up the mess that the Lower Courts created and restamp (?) its authority, which basically said that you cannot have software patents.

[26:07 - 26:29] Joe Mullin - IP Law & Business Magazine: When you saw the arguments that were brought by Bilski's lawyer - the Patent Board is in some sense an organized lobby, and it expands its subject matter that's available to be patented: it's in their interest. And it's clear that this was frustrating for some of the justices. Some of them were frustrated by how expensive patentable subject matter has become.

[26:29 - 26:34] (Young man with spectacles (?)) I mean they seem rather dismissive of the idea that you could patent this particular idea.

[26:36 - 26:51] Jakes: I think people have a hard time getting over the idea that you can get a patent on hedging commodity risk. But if you actually look at the claims, and look at what's in there, it is a process, and it's no different than any other process. It just may be that it's not the way that they thought of patents in the past.

[26:52 - 27:11] Peter Brown: We're encouraged by the comments by the justices, which showed that they were sceptical, and which suggested that they understood that software is little more than a series of steps that can be written out as mathematical formula or written out on a piece of paper or as - which was mentioned by one of the justices - typed out on a typewriter.

[27:12 - 27:23] Mullin: Software patents, on a general purpose computer, have never been explicitly endorsed by this Court. And this Court has also shown no compunction about reversing rules that have held for a very long time.

[27:23 - 27:29] (off voice or Mullin ctd (?)): They clearly thought that the petitioners here were trying to get a patent on something very basic, some basic forms of human activity.

[27:29 - 27:35] [More than 200'000 software patents have been granted in the U.S.]

[27:36 - 27:41] [Programmers find it increasingly difficult to write software they won't be liable to be sued for]

[27:42 - 27:46] [Now imagine...]

[27:44 - 27:57] [Beethoven's Vth symphony - from 27:46 with score]

[27:58 - 28:00] [Patent labels on the score for "crescendo" and "group of 3 eight-notes]

[28:00 - 28:04] [Beethoven's Vth symphony with score]

[28:04 - 28:08] [[Patent labels on the score for "Piano dynamics" "Quarter rest" "Quarter note in C3"]

[28:08 - 28:14] [Beethoven's Vth symphony with score]

[28:14 - 28:34] [[Patent labels on the score for "Sforzando", "Major third", "Tied half-note", "Tremolo", "horn in E-flat"

[28:35 - 28:42] [Credits: Directed, shot and edited by: Luca Lucarini. Produced by Jamie King. Animations: Christopher Allan Webber. Sound mix: Matt Smith]

[28:43 - 28:48] [Copyright 2010 Luca Lucarini. This film is licensed under a Creative Commons Attribution-No Derivative works 3.0 license (or later version). http://patentabsurdity.com.

[28:49 - 28:54] [Supported by a grant from the Free Software Foundation and made possible by the associate membership of the Free Software Foundation http://www.fsf.org]