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Re: MP3 decoder packaged with XMMS

On 7/13/05, Daniel James <daniel@64studio.com> wrote:
[quoting me, quoting Knorr-Bremse]
> > the Federal
> > Circuit ruled that "where, as here, a potential infringer has
> > actual notice of another's patent rights, he has an affirmative
> > duty to exercise due care to determine whether or not he is
> > infringing,"
> That's the kind of obligation I was wondering about. GPL section 7
> refers to conditions being imposed for any reason, and I'd say a
> legal duty of care is an imposed condition. The exercise of that duty
> can only lead to the conclusion that royalty-bearing patents and free
> software don't mix well.

Oh, there I disagree; they mix just fine, when the free software is
distributed privately among parties who are fully cognizant of their
licensing status with regard to those patents.  It might (IANAL) even
be OK to publish source code to the world if it has substantial
non-infringing uses and appropriate attributions and disclaimers,
especially if you don't attempt to extract revenues from people who
can't demonstrate that they have patent licenses with adequate scope. 
Patent disclosures are public documents once the patent issues --
that's kind of the point.  Exchanging source code that isn't otherwise
encumbered (by copyright, trade secret, etc.) isn't really much
different from passing around annotated copies of the patent
disclosure itself -- as long as it isn't a fig leaf for contributory

The "contributory infringement" issue gets sticky if your actual
economic motivation for publishing that source code is to benefit from
facilitating not-terribly-innocent infringement by your target
audience.  I don't have case law handy that's specific to the 35 USC
271(c) version of "substantial noninfringing use".  But for parallels
outside patent space as such, see also Junger v. Daley (
http://laws.lp.findlaw.com/6th/00a0117p.html ) and the Napster saga
http://caselaw.lp.findlaw.com/data2/circs/9th/0016401.html ).  Judge
Whyte's last ruling prior to the jury decision in the Elcomsoft
(Sklyarov's employer) case (
) is also eminently worth reading.

In any case, the "duty of care" with respect to a presumptively valid
patent is no more avoidable than the moral rights of the author
(including, even in the US, the right to attribution for contributions
that reach the level of authorship and are not works made for hire). 
As such, GPL section 7 is exactly what it claims to be -- "a
consequence of the rest of this License" to the extent that it is
enforceable at all.  IANAL, TINLA, etc.

I have had occasion to use quite an interesting variety of open source
(even GPL) tools, in my capacity as an employee of or consultant to a
company that participates in a suitable patent pool, that I would be
disinclined to touch without that protection.  If you ever need an
expert witness to demonstrate that an open source multimedia beast has
substantial non-infringing uses (which is very different from showing
that your own use is non-infringing), drop me a line and I might know
someone who can help you.

> I am not a lawyer of course, but I do know that Debian would have a
> tough time denying that it knew patents existed on MP3.

Debian, or at least more than one of its prominent contributors, seems
to find it easy to deny all sorts of things.  Whether that will
protect anyone's assets in the event of a lawsuit is a whole 'nother
kettle of fish.

- Michael

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