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Re: libdts patent issue?

On 7/16/05, Diego Biurrun <diego@biurrun.de> wrote:
> According to Mr Ravicher the odds are not that bad.  Why give in before
> the battle even started?  What if there is no problem?  Software will not
> remain free if you don't defend it and you will not keep your freedom
> if you are not willing to fight for it.  But if you want to give away
> your freedoms beforehand just in case someone might want to take them
> from you...

Let me quote you part of the "Caveat" from the research project (
http://www.patstats.org/editors_page.html ) from which Mr. Ravicher
said he got his numbers:

While we believe it is important for actual and potential litigants
and their attorneys to know what has been happening recently in the
courts on various patent law points, the value of statistics can
easily be exaggerated. We caution that any set of statistics should be
used with care, in that it is not always apparent what the data may
signify. Shifting figures for court results on a particular issue may
reflect not so much a predisposition of a court as they do variations
in the strengths of positions that litigants bring to that court. For
example, if patentees are more often willing to litigate the on-sale
issue on weaker facts than at some previous time, we should expect to
see a decrease in the percentage of times the patentee prevails on
that issue, regardless of any judicial attitudes on the subject. If
defendants become more selective in their use of the inequitable
conduct defense, we should expect to see a rise in their success rate
on that point, again independent of any shift in judicial attitude.
Moreover, since very few issued patents are actually litigated to
judgment, the reported statistics do not necessarily reflect on the
overall quality of patents being issued by the Patent and Trademark
Office, but at most only the quality of those chosen by litigants to
be asserted in lawsuits.

That's not my idea of evidence that it's a dice roll, nor is it a set
of odds on which to base a large gamble with other people's money --
and by definition such a cavalier attitude does not meet the "duty of
due care" even if it is supported by opinion of counsel.  Have you
_read_ Knorr-Bremse?  Do you understand what was at stake and by how
much -- or how little -- the Federal Circuit relaxed the "duty of due
care" calculation that courts of fact are expected to apply?  Do you
understand that the Federal Circuit en banc is absolutely the last
word on the subject in US law unless overruled by the Supreme Court or
by act of Congress?  (IANAL, TINLA)

You will not "keep your freedom" if you run under a tractor, rob your
next-door neighbor in broad daylight, or show up in court in response
to a non-frivolous suit using your pet lizard for an attorney, either.
 In this case, if continued distribution of libdts is a "freedom" that
Debian is "willing to fight for", then somebody had better start
shelling out for competent counsel and/or making the rounds to find
someone to take the case pro bono.  Mr. Ravicher and the SFLC appear
to be making the latter offer, and I would be very entertained to
watch them in action, but AFAIK no one who may feel a need to do so
has taken them up on the offer -- not Sam Hocevar, not the ftpmasters,
not the DPL, and not the board of SPI.

> Please remember that this is my answer to your question of what _I_ would
> do, I didn't say what Debian should do.

So suppose a buddy of yours goes around handing people, including you
and your next door neighbor, bags of Everlasting Gobstoppers --
candies that, in a way, contain their own recipe and never run out. 
Now Willy Wonka comes to your neighbor's door with his lawyer in tow
and says, "actually, those Gobstoppers were stolen from me; here's a
certificate issued by the administrative authorities of half a dozen
nations, duly constituted by their legislatures in accordance with
several centuries of legal precedent, that says so; please flush them
down the toilet and we'll call it quits."  Your neighbor isn't
particularly impressed but his lawyer tells him it's stupid to
challenge the validity of that certificate, so the Gobstoppers go to
Fish Heaven.

You have advertised in a small way that you hand paper bags full of
candy, Gobstoppers included, to anyone who wants them.  People who
trust you sell nice gift boxes with those candy mixes in them for the
price of the gift box.  There's no hiding your or your distributors'
dealings in candy, there's no pretending you didn't see Wonka calling
on your neighbor, there's no reason he would smile on your actions and
not your neighbor's.  The Candy Laws say that, under those
circumstances, failing to either quit handing out Gobstoppers or make
a reasonably honest _and_competent_ effort to evaluate the legitimacy
of Wonka's claim constitutes "willful infringement" and may triple the
penalties Wonka can inflict on you in court if you and he can't settle
it amicably.

Now you're totally opposed to the idea that anyone should be permitted
to own a monopoly on a candy recipe, and you have a 33-year-old treaty
to point to that someone told you means that most of the governments
involved should be distinguishing "candy" from "sweets" -- without
particularly explaining how to tell the difference -- and refusing to
grant monopolies on the former.  Fine, believe that.  But you're
telling me you won't at least call your lawyer?

> And which day would that be?  And what would be left to fight for
> anyway?  Giving in to patent FUD is a way of strengthening it.  If you
> accuse me of "fingers in ears" I'll have to accuse you of defeatism.

That day would be one where you are on reasonably high ground and have
allies, or at least co-belligerents.  Say, as an intervenor in the
Dolby-Lucent suit requesting that the court actually rule on the
validity and scope of the '437 patent, rather than permit the parties
to settle out of court (leaving Lucent's patents presumptively valid).

> Reality upstream is that the hosting university could not be bothered to
> fight the patent, even though the consensus was that the patent is
> invalid.

What consensus is that?  Consensus among qualified commentators (of
which I am not one)?  That I really, really, doubt.

> Mandriva also has it, BTW:
> http://www.mandriva.com/products/101/powerpack/packages?p=media-main6-dtsdec-0.0.2-1mdk.i586.rpm.html
> Just for everybody's information.

Then I guess they'd better call their lawyer, too.

> It seems that at least I have read it, while you haven't...

Au contraire, mon frère.  I have read it, and thought about it, and
spot-checked some of its "facts", and I stand by my assessment that it
is rubbish.  I advise you again to ask yourself: is this a
dispassionate, scholarly analysis or is it a polemic that, at best,
uses outside evidence to exhort rather than to inform?

> Given that more and more DVDs come with DTS audio, this software is
> useful whether you like the specification or not.  It's also not
> half-finished, it works just fine.

Even if it were true that "more and more DVDs come with DTS audio" --
I don't think I've ever actually seen one that wouldn't play on an
AC-3 + stereo player, but I'm sure it varies radically by region and
genre -- what does that have to do with whether it is the sort of
thing _you_ want to go to the wall for?  I might go to the wall for
Larry Flynt's right to publish material that may or may not differ
from my personal taste in literature, but would I go there for someone
who (IMHO) is less exercising free speech than circumventing his
society's prevailing bargain of temporary monopoly on a design in
exchange for permanent documentation of how it works -- and not
putting his own money and/or liberty on the line?

> Multimedia is a field that is plagued by particularly many software
> patents.  As I said, it's a slippery slope, if you drop multimedia
> today, what is going to be left tomorrow?

No one is saying "drop multimedia".  I am saying, "choose your
battlefield before an opponent chooses it for you".

> Michael, let's try to keep this ontopic please.

What could possibly be more on-topic for debian-legal than the
discussion of a strategy for dealing with a foreseeable legal problem
for Debian and its distributors and users?

> To cut a long story short, you suggest dropping the package, unless
> legal advice can show it to be harmless.  I suggest keeping it unless
> legal advice shows it to be harmful.

I suggest that the people with legal authority to do so make some
decision about whether and when it would be prudent to either drop
libdts and notify known downstream distributors or seek advice of
competent counsel.

> P.S.: Please don't CC me, I'm subscribed.

I'll try to stick to that.  But note that people whose mailers (like
mine) don't make it easy to set Followup-To are generally expected to
cope if they get double copies of a reply.

- Michael

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