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Re: MP3 decoder packaged with XMMS

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.

A 2/3 chance of probable bankruptcy versus a 1/3 chance of certain bankruptcy. Not great odds!

Yes, I agree, the patent system is causing substantial public harm and
it prejudices small business, like yours, that cannot afford to defend
themselves.  But, that is not a GPL issue, which was mention in one of
the original threads.  If IBM or some other well funded company that
could defend itself from a patent threat wanted to redistribute the same
programs you are choosing not to, they would not be violating the GPL in
any sense.

There is no such thing as being "obviously covered by ... [a] patent."

In the case of MP3 I wouldn't like to rely on there being much prior
 art to find. The format dates back a long way, around 20 years.

Patents can't last longer than 20 years.  So, any information that is
that old is, by definition, prior art.  Further, many patents that may
in fact be valid are nonetheless sufficiently narrow that functionally
equivalent implementations are outside their scope.  Thus, you need not
win on both invalidity or non-infringement to be free of a patent, you
need only show one or the other.

I'm not sure what businesses you are referring to when you say there will be serious reservations about redistributing free software.

Potentially any working in multimedia. I note that the new Nokia web
 tablet, although Linux-based, uses the LGPL GStreamer libraries with
 the proprietary Fluendo plugins, which are designed specifically to
 work around the patent licensing problem:

If the LGPL versions appear to have less risk of infringement, such has
nothing to do with their being licensed under the LGPL.  Such only
results from the way they go about accomplishing the common task.  Thus,
it is not a GPL issue, it's one of structure and functionality.  As
such, the GPL'd licensed code could be similarly designed around any
such patents.

Your point that there are implementations out there that you believe are
non-infringing proves that these patents aren't as broad as you would
believe them to be.

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'm not in a position to declare that the patents are valid, but I know that the patent holder has actively enforced them in the past, regarding the free software encoders - and could therefore do so again.

How do you know this?  Do you have evidence of such active enforcement
(which may be better referred to as assertion, since the term
enforcement gives too much credit to the legitimacy of the patent).

There's a list of patents on MP3 here:


This is not a list of patents on MP3.  It is a list of possibly valid
patents that their owner claims would cover MP3.  It proves neither that
that they are valid or that they actually do cover MP3.  Only a court
can make those conclusions.

I also find it hard to believe that the Xiph.org developers would have put many years of work into the Ogg codecs (Vorbis, Theora etc)
 on the basis of mere FUD.

Yet, you yourself are evidence of the pains folks will go through to avoid possible patent threats. I have not said MP3 does not infringe any valid patent nor that patents pose no threat. All I've said is that we should never assume a patent is indeed valid and infringed simply based on rhetoric and saber rattling and that the threat posed by patents can be managed with the assistance of counsel. SFLC and PUBPAT are here to provide that counsel to the community on a pro bono basis.

I would be happy to analyze any such evidence for you.

That's appreciated! I think it would be great if the SFLC or the PPF
 could look into the issues surrounding multimedia formats. Debian
has apparently decided not to ship a GPL'd MP3 encoder, and other distributions can't ship encoders or decoders.

While MP3 and other MPEG formats, including for video, remain de-facto standards, this creates a serious limitation on the usefulness of free software for media production and playback. It's all very well telling users to download the code 'off the internet somewhere' but many users, including in public-funded organisations such as schools or colleges, can't be expected to do that.

If Debian would like us to perform this work, we'd be happy to do so. But, we cannot represent your business, since it is for profit. However, if you'd like to discuss these issues more, always feel free to give me a ring.


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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