[linux-elitists] MP3 patents

M. Drew Streib dtype@dtype.org
Sun Sep 2 12:10:17 PDT 2001

On Sun, Sep 02, 2001 at 12:59:12PM -0600, Jack Moffitt wrote:
> However, No license fees are due if less than 5 000 copies of a
> particular game title are distributed.

With free software this is always tough, as it is pretty much impossible
to determine how many copies have been distributed (or redistributed).

> That has to be wrong though, or else the patent is unenforceable,
> because there are many people distributing mp3 players that aren't
> paying, and I havne't heard of anyone getting a letter.

Under patent law, a company is _not_ required to show a pattern of 
enforcement to make the patent enforceable. They can just decide one day
to enforce the patent, and can even sue for back damages. There is 
some consideration for 'willful' or 'non-willful' infringement, but
this doesn't remove liability.

> No one (at least not that I've heard of, and I know most of the
> developers) has ever gotten a letter for decoding royalties in a
> non-commercial application.

I know that this may be some comfort, but doesn't stop FH from one
day demanding large sums of money from people, including back-damages.
Assuming that the patent is enforceable (and at this time there is no
real reason to believe that it isn't), they would have a good case
to collect back-damages, and shut down future releases of the software.

Take for instance Unisys, who didn't enforce the GIF LZW compression
patent for a _long_ time, and then just decided to do so. One can
debate the effectiveness of the patent or of their collection campaign
(which, btw, did manage to collect a lot of money, and still does,
from software writers), but it does demonstrate the strategy of
sitting in silence while something is standardized, then demanding

There is much debate now in standards committees about just this
issue, and the dangers of standardizing on patented technologies,
regardless of whether royalties are demanded in the present.

I'm not making the case that free software _will_ be held liable
in the future, but rather saying that it is entirely possible, and
the worst case scenario (which is triggered at the whim of the patent
holder) is pretty damn bad.

Long live ogg and vorbis, and best of luck to the Xiph teams for
any lawsuits brought there....


M. Drew Streib <dtype@dtype.org> | http://dtype.org/
FSG <dtype@freestandards.org>    | Linux International <dtype@li.org>
freedb <dtype@freedb.org>        | SourceForge <dtype@sourceforge.net>
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