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Re: MP3 decoder packaged with XMMS

It's very interesting to see this statement crop up over the by-line
of the legal director of the Software Freedom Law Center.  For those
who haven't been watching carefully, that's the OSDL-funded entity,
created in February 2005, ostensibly founded to provide legal cover
for certain former pro bono clients of Eben Moglen's (principally the
FSF and the Samba project).  So the SFLC has no history to speak of;
but Mr. Ravicher does.  (Needless to say, so do the other usual
suspects listed on the SFLC's board and executive team.)

Basically correct, although FSF has also been a pro bono client of mine for several years.

Mr. Ravicher's public statements on legal matters appear to be largely
conformable to the law as I understand it (IANAL), with the exception
of his repetition of the canard that it is the knowledge of the
particular patent number infringed by a product that puts you at risk
of triple damages.  In reality, willful ignorance is no more and no
less willful than looking up the patent numbers on the packaging and
assessing the scope of patent claims yourself.

You are completely wrong on this point. Willful infringement under patent law requires the infringer to have had actual knowledge of a patent. Without actual knowledge, one cannot be found to have infringed a patent willfully. If you point me to authority you believe suggests otherwise I would be happy to address it.

But note that, like
certain other, more senior, FSF associates, he has his own clever way
of turning FUD about IP law into revenues.  Read more at
and http://www.forbes.com/home/enterprisetech/2004/08/02/cz_dl_0802linux.html

Yes, prior to forming SFLC with Professor Moglen, I represented some clients for fee. I do not do so any longer. However, having said that, I dispute that I have ever spread FUD. In fact, I have helped minimize it. The matter you cite is one where I quantified the previously indeterminable risk patents pose to the Linux kernel, which had been identified long before my work by Richard Stallman, HP, RedHat and many others. I concluded that, although the risk patents pose to the Linux kernel is not zero, it is no larger than the risk patents pose to other operating system kernels and might actually be much less.

I question his use of statistics regarding such disputes,

I am happy to provide you support for the use of statistics I have made on which you have questions or issues if you will raise them with me.

And even though these three patents appear to have been
chosen as low-hanging fruit, in two out of three cases it remains to
be seen whether the patentees will submit revised claims and obtain
reissuance of their patents.  "Office actions" of the kind issued in
the Lipitor and FAT-long-filenames patents are frequently issued in
the course of establishing what claims the patent examiner will allow
on the basis of a given disclosure, and narrower claims often succeed.

True. However, a narrower patent may nonetheless eradicate any public harm being caused by the patent by no longer capturing functionally equivalent design arounds. Also, the FAT patent matter received a second office action about a week or so ago that again rejected all of its claims.

If I were you I would be very, very cautious about inviting the SFLC
to hang its first test case on my project.

I completely agree that potential clients should do research before retaining counsel and that both competency and other factors should impact the decision of what counsel to retain. Without question, clients should retain counsel that they feel comfortable with and trust.

However, just FYI, SFLC already represents a large number of clients, so no new client would be anywhere close to our first. Also, Professor Moglen and I have been providing pro bono legal services to various free software clients for many years now. The only thing that is new is that we have received a grant to enable us to grow a firm to expand our capacity. If people wish to contact us about how we might be able to help them, terrific; if not, we wish them all the best.

Warm regards,

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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