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Re: MP3 decoder packaged with XMMS

On 7/16/05, Arnoud Engelfriet <galactus@stack.nl> wrote:
> Thomson's answer wasn't particularly surprising, since European
> patent law already contains an exemption for personal use of
> patented technology. Besides, there's no money to be gained from
> sueing individuals that use a patented technology privately.

Can you point me to that statute?  Is it a "hobbyist, design it
yourself, infringe unknowingly" sort of thing, and if not, where is
the dividing line between a precise description of the ideas contained
in a patent and one that is so precise that it happens to be an
executable implementation?

> I don't see where you got the "distributors" from, since the
> note only speaks of "personal use".

At least in US copyright law as I understand it (which borrowed the
term from patent law), "contributory infringement" can't be found
where there is no direct infringement to be contributed to, nor even
where there are substantial non-infringing uses of the product and the
distributor makes a good-faith attempt to discourage, and avoid
deriving substantial revenues from, infringing uses.

It strikes me that personal use of, say, a Debian package of LAME
would almost certainly dominate commercial use, and that Debian could
with a bit of care avoid both the fact and the appearance of deriving
substantial benefit from infringing uses.  If Thomson were effectively
estopped from arguing that personal use was unlicensed and infringing
(which would presumably take a bit more official statement on their
part, but not that much more official), then Debian and its
derivatives would effectively have their blessing to distribute
open-source MP3 encoders -- as long as we communicate clearly to their
recipients that we do not convey any patent rights to them and they
are protected patent-wise by nothing other than an estoppel theory
with limited scope.

Whether all this is DFSG-free is of course a whole 'nother question,
but it's always interesting to know what really is and isn't on offer
from a rights holder.  If you think about it, a text editor can also
be used to do things that violate a third party's IP rights of one
kind or another; but that doesn't make text editors non-DFSG-free. 
Bit of a stretch, I know -- but how about BitTorrent clients, given
what seems to be the numerically dominant traffic over that protocol? 
(Numerical dominance alone doesn't prove anything; IIRC Sony's own
study of usage habits in the original VCR case suggested that only 20%
of end user VCR usage was non-copyright-infringing.)

- Michael

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