[p2p-hackers] no subject (file transmission)

[Nick Szabo]

Disclaimer -- IANAL and the following are personal not legal opinions.

The "found valid by a jury" business is FUD -- it's meant to intimidate those receiving the cease & desist letters into thinking they will lose, but the jury finding has no direct legal effect on future cases.

To have such an effect it would have to satisfy the criteria for issue preclusion.  If an issue is precluded for a future case that would mean the finding in the previous case stands -- it can't be re-argued or decided differently in the future case.

The party against whom issue preclusion is asserted must have been present at the original trial and had a full and fair opportunity to litigate.  Here this only applies to Akamai itself.  In other words, if Akamai infringed again, and they had lost the first trial, the validity issue wouldn't be retried in the second trial.  But other accused infringers can re-challenge the validity from scratch.   (I suspect, but Im not certain, that the jury result can't even be introduced as evidence to sway future juries, though it looks like nothing stops them from putting the results in cease & desist letters).

Here the jury finding couldn't even preclude re-arguing the validity even in a future suit against Akamai since it's not necessary to the result of the first case.   This kind of thing has been going on in IP for many decades -- see Electrical Fittings v. Thomas Betts, 307 U.S. 241 (1939) at http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/307/241.html.  According to the result in that case Akamai here could have appealed the jury finding (even though it won the case), but since the issue isn't precluded Akamai had no incentive appeal, and didn't.

If the roles were turned around the issue could be precluded -- if the jury had said the patent was invalid (and Digital Island/C&W/Altnet couldn't overturn the jury on appeal), and Altnet for that reason lost the case, Altnet would be precluded from raising that issue again -- the patent would remain invalid for subsequent lawsuits.   If juries find conflicting results there probably won't ever be any preclusion, so the issue of the validity of this Altnet patent probably won't ever be precluded, though it would be an interesting case to argue.  So the jury finding in Akamai might have this indirect legal effect on future cases in _preventing_ preclusion of the validity issue in favor of defendants.

As for the probabilities of subsequent juries going the same way as the first, I suspect there's not much correlation.  Juries in patent cases are all over the map, and given that there is more publicity in the p2p world this time around, future defendants will probably find much better prior art to challenge the Altnet patents with.



> "Also, a decentralized scheme such as in
> Kazaa has no availability problems but lacks integrity, since Kazaa is
> plagued with many fake files. Clearly, decentralization is an unsolved
> issue that needs further research."

Perhaps this is ironic, but a good solution is protocol-enforced property 
rights.  Specifically, we should treat names crossing trust boundaries as 
property, and securely agree across trust boundaries on who owns what names, 
as described in

"Secure Property Titles with Owner Authority",
http://szabo.best.vwh.net/securetitle.html

Nick Szabo