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Re: MP3 decoder packaged with XMMS

Quite, but there is the issue of GPL section 7 making this particular library non-free. The patent licence terms for MP3 technology are very clear, even for free software decoders:

Section 7 is very clear, "if ... conditions are imposed on you (whether by court order, agreement or otherwise) ..." Thus, absent
 a court order barring a particular practice or someone agreeing to
 not perform a particular practice, Section 7 is not triggered.

Section 7 uses the words 'otherwise' and 'for any other reason', so it specifically includes situations other than court orders or agreements. Patent law imposes conditions (and penalties) on businesses even when there is no explicit agreement with the patent holder.

Absolutely false.  Patent law imposes no condition on businesses
forbidding certain activity until either a court enters an
injunction barring such activity or a party itself agrees not to perform
such activity.  I can understand how the rhetoric (FUD) spread by patent
holders may have lead you to believe otherwise, but it is incorrect.

Just because a patentee says you need a license does not either (1)
 make it true

That seems a little 'head in the sand'. The MP3 patent holders have a
truckload of patents on the format in many countries, going back to the 1980s. I don't see how a business could distribute free software on the basis that if it came to a lawsuit for patent infringement, it
could just deny that patent law applied. A lawsuit would destroy my
start-up company, even if we won in court.

Patentees only win patent infringement cases 1/3 of the time, so it is
not unreasonable to feel confident that a dispute would result favorably
for the accused infringer.  Further, whether your company or any other
defendant could afford to defend yourself if sued has no impact on
whether a "condition" has been placed on you.  That's your financial
situation, not a condition placed on you by a court or yourself.

Further, with respect to Debian, both the Software Freedom Law Center
and the Public Patent Foundation are ready, willing and able to provide
legal services to protect it and the community's rights, should that
support be desired.

I fail to see what the "patent licensing problem" to which you refer.

It's simply that when code obviously covered by actively enforced patents is bundled with free software, business will have serious reservations about redistributing that free software. The ironic thing about this particular package is that Debian is usually regarded as being stricter on licensing issues, yet it is bundling libraries that other distributions feel they cannot.

You give patents _way_ too much credit.   There is no such thing as
being "obviously covered by ... [a] patent."  Again, patent holders
would like the world to believe such is the case, but it is flatly not
true.  Proving infringement is an extremely difficult process and not
one capable of being "obvious" until a court has interpreted what the
precise scope of a patent is.

I'm not sure what businesses you are referring to when you say there
will be serious reservations about redistributing free software.  Many
businesses are distributing free software today with the correct
understanding that although patents are indeed a threat to all software,
not just free software, they do no pose an overwhelming threat that
cannot be managed.

The most I can see here is a general threat made to the entire world.

In the area of multimedia, the MPEG related patents are a particular problem because the formats are de-facto standards - MP3 is just one of these.

What evidence, and not just patentee statements or general fear and mis belief within the community, do you have that they have valid patents that cover the entirety of the standard? I would be happy to analyze any such evidence for you.

I am aware of no specific allegation being made against Debian.

Sure, but that's probably due to the perception that Debian and free software are non-commercial, and so aren't worth suing. As commercially successful products based on Debian emerge, that might change.

I find it unreasonable for any sophisticated patent holder to believe free software is non-commercial. Although Debian may be at this point, much of what is Debian is distributed by others in a very commercial fashion under other brand names.

Running a business based on free software, I have to consider all the
potential threats to that business - and patent enforcement is one of them. It's my intention that we ship only free formats in the base 64 Studio distribution, and if people want to use proprietary, patent-encumbered formats then that will be a (fully legal) 'optional

If you believe that something is "patent-encumbered" just because some patentee says they have a patent that covers a format, you are giving the patent way too much credit and I fear you will soon be unable to distribute any format. But, if such is your business position, that is your choice. I just think it is a wrong one, and I highly recommend it not be the one taken by Debian.


Daniel B. Ravicher
Legal Director
Software Freedom Law Center
1995 Broadway Fl 17
New York, NY 10023-5882
212-461-1902 direct
212-580-0800 main
212-580-0898 fax

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