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Re: mplayer, the time has come

[First off, can you please not top post? The remaining vestiges of my
sanity thank you in advance.]

On Thu, 24 Feb 2005, Sean Kellogg wrote:
> Can this list PLEASE stop the belief that ducking your head in the
> sand in regard to patent violations saves you from increased
> liability?

The belief that we have formed (and believe me, I started out with an
entirely different assumption... see [1] et al.) is that knowing about
a patent and infringing it with that knowledge puts you in danger of
being assessed trebble damages instead of the normal damages that
would be assessed.

This understanding is based in part on the following:

     Ordinarily, when someone is found liable for patent infringement,
     they are prohibited from continuing the infringing activity, and
     they are ordered to pay the patent holder damages equal to a
     reasonable royalty for the use of the patent, or the patentee's
     lost profits. The law permits judges to increase the monetary
     damages by up to three times, however, if there is a finding of
     willful infringement, meaning that the infringer had knowledge of
     the patent before engaging in the actions which constitute

     If someone brings a patent to your attention, and you decide that
     you are safe because it does not cover what you are doing, you
     are entering into a legally shaky area. The Court of Appeals for
     the Federal Circuit (effectively the final word on patent law,
     since the Supreme Court rarely takes patent cases) has ruled that
     anyone who is not a patent attorney is not qualified to determine
     the scope of the claims in a patent, and that it would be
     unreasonable for you to determine that a particular patent is not
     applicable to what you are doing unless you first get a legal
     opinion from a patent attorney. Because, as a matter of law, you
     couldn't really have believed that you understood the patent
     (yes, our federal courts can be quite condescending), you will
     likely be found liable for triple damages if it turns out that
     you were wrong, and that you really are infringing the patent.

     Because of this, lawyers routinely advise their clients to avoid
     reading patents in areas they are working in. The danger posed by
     the willful infringement doctrine is seen as outweighing any
     benefit that can be gained from reading patents.[2]

> Debain and its users are not going to ever be sued for money
> damages...

Are you willing to stick your money where your mouth is and place a
large deposit to offset any possible damages that are actually
assessed against Debian?

> Further more, we would have a hell of a time proving that we aren't
> aware of the patent... we know about it, anyone on this list, the
> DPL, we all know about the patents.

I don't know about these patents at all, and I'm fairly certain that a
large number of DDs have rather studiously remained unaware of these
patents. [Probably a large percentage of whom have remained rather
studiously unaware of what -legal is doing, but that's neither here
nor there.]

Don Armstrong

1: http://lists.debian.org/debian-legal/2003/01/msg00168.html
2: http://www.advogato.org/article/7.html
Cheop's Law: Nothing ever gets built on schedule or within budget.
 -- Robert Heinlein _Time Enough For Love_ p242

http://www.donarmstrong.com              http://rzlab.ucr.edu

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