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Re: MPlayer revisited

On Sunday 12 June 2005 08:31 am, MJ Ray wrote:
> "Kevin B. McCarty" <kmccarty@Princeton.EDU> wrote:
> > This seems like a potentially bad idea, actually.  I certainly can't
> > cite specific laws, but I seem to recall from similar discussions that
> > if a patent holder can prove a patent was violated in full knowledge of
> > the violation, he is entitled to triple damages.
> Law student Sean Kellogg disputed that popular legend on this list
> in February 2005. Because I don't live in "home of the brave, land
> of the legal fee" I don't know who to believe.

Like I said then, and really meant to put together something a bit more 
sophisticated on the topic later, the issues is one of what constitutes 
"notice."  The finding for trebble damages does not require specific or 
actual notice of the patent number...  in fact, failure to engage in due 
dillegence itself my be evidence of knoweldge!!!  This puts Debian in a 
position most software companies find themselves every time they prepare to 
release...  what is the actual legal risk?

My understanding is that the opposition to software patents has engendered a 
belief that ANY risk is too great.  For political reasons, this may be the 
right course of action.  However, from a legal perspective, if I were 
advising a client I would look at the benefits and risks of the issue.  Has a 
software patent ever been enforced against a Linux distriubtion?  If it has, 
what were the results? (I'm guess nothing more that a cease and dissist 

If our concern is with Debian's users, then the issue d-l should be devise a 
method toappropriatly notify those users of any potential risk involved with 
their actions (downloading and using mplayer).  Let the individual know the 
full situation upfront and they can make the appropriate call based on their 
situation.  (private users probably won't care...  a big company with deap 
pockets might care a great deal).  As a side note, most (if not all) 
licensing/contract deals with high tech companies have clauses dealing with 
patent indemnities because the simply truth is you JUST don't know about the 
patents out there.  The assumption is that if you are violating the patent, 
you'll figure out how to cut a deal with the patent holder.

I think the bigger concern with outstanding patents is not with the legal 
risks or trebble damages, but whether patent encumbered software complies 
with the DFSG.  Seems to me there are all sorts of possible issues there with 
freedom to modify and distribute.

> > In the course of
> > researching patents possibly violated by MPlayer, one would surely
> > uncover the presence of the same patents in code already in Debian --
> > the already-mentioned Xine, Avifile, etc.
> Does not knowing about a bug make it any less of a bug?
> --
> MJR/slef
> My Opinion Only: see http://people.debian.org/~mjr/
> Please follow http://www.uk.debian.org/MailingLists/#codeofconduct

Sean Kellogg
2nd Year - University of Washington School of Law
GPSS Senator - Student Bar Association
Editor-at-Large - National ACS Blog [http://www.acsblog.org]
w: http://probonogeek.blogspot.com
So, let go
 ...Jump in
  ...Oh well, what you waiting for?
   ...it's all right
    ...'Cause there's beauty in the breakdown

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