Re: MP3 decoder packaged with XMMS
On 7/19/05, Monty [EMAIL PROTECTED] wrote: On Tue, Jul 19, 2005 at 04:05:59PM -0700, Michael K. Edwards wrote: That's mighty cool. Can you say anything about the Mercora encoder's psycho-acoustic bits In fact, I can't say much about it (I know all about it but am under NDA). That's what I expected. Such is life. or about how you approach the risk that loading a particular codebook into the Vorbis decoder would result in something patent-infringing? The codebooks are huffman trees + a value per leaf: just data. The code that applies them may infringe, but I doubt very much that raw data itself can, genomics stupidity notwithstanding. That's a little like saying that no software can possibly infringe a patent because the object code is just data consumed by a Von Neumann machine. Only a little, of course; the codebook abstraction is hardly Turing complete. But suppose that the Vorbis decoder fit most of the claims of a patent, and that a certain pattern of codebook usage completed the fit. Then combining the two would be a patent-infringing use, and the suppliers of one or both (not to mention of the encoder) could be held liable depending on criteria such as whether there are substantial non-infringing uses. Let me make that a little more concrete. Lucent's patent #5,341,457 (at issue in the Dolby suit) has four independent claims: #1 (method of processing ... audio signals, i. e., encoding) #10 (storage medium to which is applied a recording signal, i. e., the data format put in a physical form according to the patent-agent shibboleth of the day) #13 (method of transmitting audio signals, i. e., streaming encoder) #17 (method for generating signals, i. e., the encoding process again, but this time stated all in one claim and hewing a little more closely to the preferred embodiment than #1 does) The disclosure also describes the decoder for these signals. It is wholly plausible to me (IANAL, TINLA) that the history of the patent application would support a claim either that the act of decoding such a storage medium is an infringing use or that the examiner erroneously insisted on the storage medium lingo when the proper subject matter of the invention is the encoding and decoding processes. Now, my reading of this patent is that the novel bit of each independent claim is the use of at least one tonality value reflecting the degree to which said time sequence of audio signals comprises tone-like quality to control the noise masking threshold used when quantizing. The rest is vanilla blockwise transform coding (in the disclosure, 2048 FFT). In the preferred embodiment, the tonality value is a Spectral Flatness Measure, a relatively inexpensive-to-calculate (given a cheap floating point multiply, anyway) proxy for a true statistical measure of tone strength. The disclosure is quite articulate on the scientific basis for varying the noise threshold, and hence the quantization, based on the degree of tonality in a given critical band. A range of noise thresholds would presumably translate, in the Vorbis codec as it does in the entropy-coded case of the '457 preferred embodiment, to a range of Huffman codebooks. Without going into needless detail, I submit that one could easily construct a Vorbis encoder that selected codebooks for residue encoding using substantially the method taught in the '457 patent. Would its output be meaningfully distinguishable from that of the reference Vorbis encoder or of the Mercora encoder? I have not studied either enough to be able to answer that question. Note that I turned first to the '457 patent, not least because its claim structure is simpler, but also because its claimed invention appears to me to be a little closer to the heart of the Vorbis system. A quick glance at #5,579,430 (the principal MP3 patent) persuades me that I could go through a similar exercise, not with claim 1 (since Vorbis doesn't appear to provide an escape mechanism from codebook into PCM, i. e., raw data for rare entries), but with each of the other independent claims 19 and 22. Personally I think both of these claims are very weak on both the originality and non-obviousness fronts. In my unqualified opinion, if they were ever litigated they would have to have dependent claims containing non-trivial psycho-acoustic results or other engineering benefits folded into them, or else they could well be invalidated altogether. The claims dependent on 22 make it clear that it is about re-establishing sync in mid-stream, and hence outside the domain of Vorbis proper. But 19, 20, and 21 together represent a psycho-acoustic tactic that I wouldn't immediately dismiss as unfit for patenting, and could easily be embodied in an alternate Vorbis encoder. Have you tried, just for kicks, mapping the AC-3 and/or MP3 techniques onto the Vorbis framework? Vorbis isn't a framework, it's a codec. A more flexble codec than the others, but still just a
Re: MP3 decoder packaged with XMMS
On 7/18/05, Michael K. Edwards [EMAIL PROTECTED] wrote: On 7/18/05, Raul Miller [EMAIL PROTECTED] wrote: On 7/18/05, Michael K. Edwards [EMAIL PROTECTED] wrote: On 7/18/05, Raul Miller [EMAIL PROTECTED] wrote: Are you suggesting that the use of time - frequency domain mapping is not ostensibly covered by the presumptively valid patents? If you want to know what I am suggesting, with regard to a particular patent from the Fraunhofer suite (which I have looked at _very_ quickly and remember that in any case I am not qualified to judge), read http://lists.debian.org/debian-legal/2005/07/msg00141.html . This seems tangential, and does not answer my question. If the question is, is it remotely plausible that Fraunhofer claims to have patented the Discrete Cosine Transform or its application to music compression, the answer is no. How's that? Strawman -- overly specific. Or, perhaps that all other such techniques which have been in use for quite some time (such as favoring frequencies which the human ear is sensitive to) are all not ostensibly covered by the presumptively valid patents? [more non-answer elided.] If you don't have a simple answer for these questions, please don't imply that you have. Where, exactly, did I imply that? Either you're using the word covered in some way that has nothing to do with the claimed scope of the patent (in which case you are IMHO engaging in empty rhetoric), or you have been grossly misinformed as to the claimed scope of the Fraunhofer patents (and others claimed by reputable players in multimedia compression). I'm guessing both. You're great with implying things, but... I'm grossly misinformed as to the claimed scope of the Fraunhofer patents in the sense where you say AIUI a court of fact has the discretion to more or less completely rewrite the claims of a patent when it is litigated, By covered I mean appears in the claims of a patent. Am I being overly broad? Perhaps. But considering the lengths Ogg Vorbis have had to go through, to avoid litigation, I think my approach is representative of what the MP3 patent holders feel is valid. If we're talking about avoiding distribution of software to avoid potential but as yet non-existent challenges, we're going to need to be fairly broad in our consideration of what would be a potential threat. -- Raul
Re: MP3 decoder packaged with XMMS
Hi Raul, avoiding distribution of software to avoid potential but as yet non-existent challenges To describe patent lawsuits as a non-existent challenge seems a little optimistic to me. If it were so, there would have been no point to the recent campaign in Europe. Basing estimates of which patents will be enforced and which will not on recent actions is also unreliable - a patent holder can strike at any time if it gets the impression that there's money to be made. we're going to need to be fairly broad in our consideration of what would be a potential threat. Unfortunately, yes. That's what I regard as due care under the law. Cheers! Daniel -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: MP3 decoder packaged with XMMS
On 7/19/05, Daniel James [EMAIL PROTECTED] wrote: Hi Raul, avoiding distribution of software to avoid potential but as yet non-existent challenges To describe patent lawsuits as a non-existent challenge seems a little optimistic to me. If it were so, there would have been no point to the recent campaign in Europe. Basing estimates of which patents will be enforced and which will not on recent actions is also unreliable - a patent holder can strike at any time if it gets the impression that there's money to be made. Unfortunately, yes. That said, the patent holder doesn't have to have a patent covering the technology in question to challenge people using technology described their claims. All that's required is that they not be obviously silly. One way of addressing this (either before or after it becomes a court issue) involves documenting prior art (Ogg Vorbis has been very meticulous about this, though other approaches are also possible). This doesn't prevent any such challenges, but it weakens them, severely. Thanks, -- Raul
Re: MP3 decoder packaged with XMMS
On 7/19/05, Raul Miller [EMAIL PROTECTED] wrote: On 7/18/05, Michael K. Edwards [EMAIL PROTECTED] wrote: If the question is, is it remotely plausible that Fraunhofer claims to have patented the Discrete Cosine Transform or its application to music compression, the answer is no. How's that? Strawman -- overly specific. OK -- how about this: Fraunhofer, AFAICT, has not attempted to patent any well-known technique of converting data from a time series to a frequency spectrum, nor the idea of applying such a technique to music compression, nor would they or anyone alse have a prayer of litigating such a claim successfully in court. (IANAL, TINLA.) If you don't have a simple answer for these questions, please don't imply that you have. Where, exactly, did I imply that? Either you're using the word covered in some way that has nothing to do with the claimed scope of the patent (in which case you are IMHO engaging in empty rhetoric), or you have been grossly misinformed as to the claimed scope of the Fraunhofer patents (and others claimed by reputable players in multimedia compression). I'm guessing both. You're great with implying things, but... There are a few things for which I have simple answers. What exactly is patented (or patentable) about the MP3 technology suite isn't one of them, and I don't think I implied it was. But there are some questions in that area with simple no answers, such as whether Fraunhofer claims to own the DCT or its cousins. I'm grossly misinformed as to the claimed scope of the Fraunhofer patents in the sense where you say AIUI a court of fact has the discretion to more or less completely rewrite the claims of a patent when it is litigated, The court's discretion is to promote justice by correcting the record to reflect the truth where they are not prohibited by constitution, statute, or rule of law from doing so. When we are talking about the record of an invention, if the patent examiner misunderstood or mis-applied the rules about how claims are supposed to relate to statute, disclosure, and prior art, or if well-pled claims about procedural defects and/or additional prior art are brought before the court, then the claims can be reshaped to reflect the facts more accurately. If you fear that a competent court will rewrite the claims of any patent to grant a monopoly on the use of the Fourier transform, then you might as well not get out of bed in the morning. By covered I mean appears in the claims of a patent. Am I being overly broad? Perhaps. But considering the lengths Ogg Vorbis have had to go through, to avoid litigation, I think my approach is representative of what the MP3 patent holders feel is valid. What lengths are those? They have been careful to avoid some of the more obvious pitfalls by keeping the end-user component (the decoder) pretty generic and hewing closely to the older prior art (such as Ehmer's 1959 papers). They sought opinion of competent counsel on one occasion in the vicinity of the Vorbis 1.0 release. They respond with care and courtesy to inquiries about the relationship between their work and patents that they know to be relevant. So far, that's all good practice in any technology field. On the other hand, their executive team has publicly been less than diplomatic with a major patent holder on at least one occasion (Google it yourself) and they've based their business strategy on the marketing benefits of patent-free-ness rather than the prevailing have some patents of your own to bring to the table advice. I admire them and wish them well, and I like to see Debian promote their formats over MP3 and its ilk, but saying they go to great lengths to avoid litigation seems a bit exaggerated unless you know something I don't. If we're talking about avoiding distribution of software to avoid potential but as yet non-existent challenges, we're going to need to be fairly broad in our consideration of what would be a potential threat. Not so broad as to wildly misrepresent how the system works or to woefully exaggerate what is covered in an unnamed patent. I'm not saying you are knowingly doing these things, just that you risk doing so if you repeat things like the use of time - frequency domain mapping is ... ostensibly covered by the presumptively valid patents. Cheers, - Michael (IANAL, TINLA)
Re: MP3 decoder packaged with XMMS
On Sat, Jul 16, 2005 at 12:54:04AM -0700, Michael K. Edwards wrote: I wrote: Presumably you are also aware of patents 5,341,457 and 5,627,938, which Lucent has been seeking to enforce against Dolby AC-3. As your encoder appears to use Ehmer's tone masking techniques, which are also cited in the AC-3 standard definition, ... Ehmer's work is cited but we don't actually use Ehmer's data. The curves you see in the tonemasking are directly from the ears of yours truly measured repeatedly over the space of a month and pessimistic mean taken. There's a 4kHz notch there that's actually an unfortunate artifact of the measuement. The irony here is that tone-tone masking is the least useful of the techniques Vorbis uses for psychoacoustic measurement. Higher-speed vorbis encoders, such as Mercora's, dispense with tone-tone masking entirely. I am of course aware that Ehmer's techniques were published in 1959; but the combination in the claims of the '457 patent is presumptively a valid invention, and I don't grok either it or psy.c well enough to be able to tell whether they coincide. It seems particularly timely to raise the issue since Dolby is quite capable of settling out of court now that they have gotten what they wanted (declarative relief WRT AC-3 and Lucent's patents), and if Xiph.org or someone else wants to intervene to demand resolution of the question of the Lucent patents' validity then the time is presumably now. Was this declarative relief preemptory or the result of litigation. If it's preemtive... how the H*** did they manage to do that? Monty IANAL, IJNS -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: MP3 decoder packaged with XMMS
On 7/19/05, Michael K. Edwards [EMAIL PROTECTED] wrote: OK -- how about this: Fraunhofer, AFAICT, has not attempted to patent any well-known technique of converting data from a time series to a frequency spectrum, nor the idea of applying such a technique to music compression, nor would they or anyone alse have a prayer of litigating such a claim successfully in court. (IANAL, TINLA.) Good enough. More generally, I don't think that principles of mathematical equivalence should be relevant in determining what is or is not patentable. This gets back to the topic of how issues of fact have been handled (or not) in existing court cases. If we're talking about avoiding distribution of software to avoid potential but as yet non-existent challenges, we're going to need to be fairly broad in our consideration of what would be a potential threat. Not so broad as to wildly misrepresent how the system works or to woefully exaggerate what is covered in an unnamed patent. I'm not saying you are knowingly doing these things, just that you risk doing so if you repeat things like the use of time - frequency domain mapping is ... ostensibly covered by the presumptively valid patents. If you follow this thread back, I was not talking court decisions at all. I was discussing a comment made by some programmer(s) who had apparently read the patents in question. -- Raul
Re: MP3 decoder packaged with XMMS
On 7/19/05, Monty [EMAIL PROTECTED] wrote: Ehmer's work is cited but we don't actually use Ehmer's data. The curves you see in the tonemasking are directly from the ears of yours truly measured repeatedly over the space of a month and pessimistic mean taken. There's a 4kHz notch there that's actually an unfortunate artifact of the measuement. Interesting. AIUI that doesn't necessarily imply that your golden ears curve wouldn't be ruled to infringe on a nearly indistinguishable semi-empirical curve if there were such a patent -- but I would think that this aspect of the reference encoder's method would be ruled unpatentably obvious in light of Ehmer. Which, from a point of view in which you prefer unpatentable techniques (not least to reduce the risk of being submarined), is a good thing. The irony here is that tone-tone masking is the least useful of the techniques Vorbis uses for psychoacoustic measurement. Higher-speed vorbis encoders, such as Mercora's, dispense with tone-tone masking entirely. That's mighty cool. Can you say anything about the Mercora encoder's psycho-acoustic bits, or about how you approach the risk that loading a particular codebook into the Vorbis decoder would result in something patent-infringing? Have you tried, just for kicks, mapping the AC-3 and/or MP3 techniques onto the Vorbis framework? It would be kind of fun to write a lossless transcoder to Vorbis from one or more patent-encumbered formats and to see if there are any discernible patterns in the codebooks. It might also be a prudent defensive measure so that you can demonstrate what a potentially infringing Vorbis stream would look like and evaluate to what extent you can distinguish them from Mercora streams. Could be doubly prudent if there's anything about the Mercora internals that you wouldn't want to have to divulge into the public record during a court proceeding, since presumably in the absence of a patent you have no way of retaining proprietary rights to that encoder's methods of operation other than trade secret law. Note that I have no problem with the Mercora encoder not being open source, and I'm not trying to use this as some sort of object lesson in the legitimacy of software patents -- though I could see it shaping up that way in the long run. I'm just trying to understand how deliberately eschewing patents works out in a field littered with them. Was this declarative relief preemptory or the result of litigation. If it's preemtive... how the H*** did they manage to do that? I am going on the press release at http://investor.dolby.com/ReleaseDetail.cfm?ReleaseID=161066 ; I haven't yet gone to the law library for the April 22, 2005 ruling in the Northern District of California that granted summary judgment of non-infringement, and I don't even know which judge issued it. I don't know for certain how Lucent's patents wound up in play; here is Dolby's spin on it: quote In May 2001, Dolby filed a lawsuit against Lucent in the United States District Court seeking a declaration that the '457 and '938 patents are invalid and that Dolby has not infringed, induced others to infringe, or contributed to the infringement of any of the claims of these patents. In August 2002, Lucent filed counterclaims alleging that Dolby has infringed the two patents at issue directly and by inducing or contributing to the infringement of those patents by others. Lucent contended that products manufactured by Dolby licensees incorporating Dolby(R) AC-3 technology infringe those patents. Lucent sought injunctive relief and unspecified damages. /quote Cheers, - Michael
Re: MP3 decoder packaged with XMMS
On Tue, Jul 19, 2005 at 04:05:59PM -0700, Michael K. Edwards wrote: That's mighty cool. Can you say anything about the Mercora encoder's psycho-acoustic bits In fact, I can't say much about it (I know all about it but am under NDA). or about how you approach the risk that loading a particular codebook into the Vorbis decoder would result in something patent-infringing? The codebooks are huffman trees + a value per leaf: just data. The code that applies them may infringe, but I doubt very much that raw data itself can, genomics stupidity notwithstanding. Have you tried, just for kicks, mapping the AC-3 and/or MP3 techniques onto the Vorbis framework? Vorbis isn't a framework, it's a codec. A more flexble codec than the others, but still just a codec. The techniques used by both mp3 and AC3 are, to put it bluntly, ancient. Although there was once some 'cargo cult' tendency to try out what the other encoders did, for the most part the external techniques turned out to be obsolete or inappropriate. Floor 0 is the most visible example of taking a cue from outside research without thinking it through (LSP is a *terrible* idea for wideband encodings). In general, the 'lock you up tight' patents that the other firms go for are not ones that strictly affect encoding or the raw bitstream itself; they attempt to patent sufficient algoritms around the data that it's impossible to encode/decode the bitstream itself without infringing. This is another reason I feel relatively secure about Vorbis; the bitstream looks/works nothing like the competition. Should, God forbid, Vorbis be accused of using some specific technique that is not central to handling the bitstream, we could sidestep it easily. The only worrisome patents are the abusive, overly-broad ones. However, the biggest reason I feel secure is that most of the world is currently using and shipping Vorbis daily. Even Microsoft ships it in games (where it's not obvious that it's there, but it is nonetheless). It would be kind of fun to write a lossless transcoder to Vorbis from one or more patent-encumbered formats and to see if there are any discernible patterns in the codebooks. Can't happen. The transform domains are not compatable. It might also be a prudent defensive measure so that you can demonstrate what a potentially infringing Vorbis stream would look like and evaluate to what extent you can distinguish them from Mercora streams. Mercora is 100% real Vorbis. Aside from a different vedor string I don't believe they are distinguishable from streams produced by our reference encoder. Could be doubly prudent if there's anything about the Mercora internals that you wouldn't want to have to divulge into the public record during a court proceeding, since presumably in the absence of a patent you have no way of retaining proprietary rights to that encoder's methods of operation other than trade secret law. The Mercora encoder isn't ours and we have no rights to it, but I will say it doesn't do anything the reference encoder doesn't. Aside from that, I'm not sure what your point actually is; the worry that third parties using Vorbis would be exposing themselves to being forced to violate NDA? I'm just trying to understand how deliberately eschewing patents works out in a field littered with them. If I was going to be worried about patents to the level of paranoia some suggest, I'd have to give up computers and become a blacksmith or machinist, or something (perhaps a hooligan, that's always appealed, but I hate soccer and cheap booze). You can't demonstrate conclusively that a single piece of software, anywhere, does not infringe any patent. How many patents does GCC 'infringe'? 100? 1000? 10,000? The only answer is: The courts have not awarded any infringement claim against the FSF regarding GCC and that is the closest practical definition we have of does not infringe. Vorbis meets the same definition and, honestly, is really not any more likely than GCC to see an infringement claim (eg, Microsoft is not 'at war' with us the way they are with the FSF. Microsoft is about as aggressive as software companies get, yet for some reason they're not using the patent card). The only suggestion, at any time, that there may be an infringement claim against Vorbis was an off-the-cuff remark from Henri Linde of Thomson years ago when he was under the impression that 'Vorbis' was just a tweaked mp3 encoder. He was corrected and retracted his remarks (but that followup was not widely reported). Was this declarative relief preemptory or the result of litigation. If it's preemtive... how the H*** did they manage to do that? I am going on the press release at http://investor.dolby.com/ReleaseDetail.cfm?ReleaseID=161066 ; I [...] At this point a lawyer who knows what actually happened has to weigh in and let us know; anything else is guessing, hearsay and uninformed speculation I fear :-( Not that it's ever
Re: MP3 decoder packaged with XMMS
On Mon, Jul 18, 2005 at 09:27:55AM +0100, Daniel James wrote: Hi Steve, We're certainly all well aware of the patents that are being enforced against mp3 encoders, and Debian does not ship any mp3 encoders. So it's OK for Debian users to 'consume content' in MP3 format but they can't make and distribute their own music in the same format? It's not really in the spirit of free software, particularly if you consider that an encoder is to an internet-using musician what a compiler is a to developer. But that's hardly an argument grounded in concerns of legality, now is it? We seem to have wandered far astray from your original concern -- and far away from the topic of this list. In any case, I don't think denying our users access to files they have every legal right to use is an appropriate way to try to kill off the mp3 format. Even if it were, would you really have us do so by treating unsubstantiated patent claims about mp3 decoding as if they were valid? This would mean not only that Debian wouldn't support mp3 players, but also that we wouldn't support mp3 *converters* for extracting legacy data. Is that really helping anyone? I'm actually not aware of *any* CD's over mp3 decoding/playing that have actually stuck That's because it doesn't suit the patent holder's agenda to clamp down on the non-commercial distribution of decoders. It's more important to them that MP3 remains the de-facto standard among end users than that every single user pays up - and they know chasing Debian for payment probably won't be cost effective. Are you speculating, or do you have oracular insight into the validity of the respective patents that the rest of us lack? I share your suspicions regarding the patent holders' motivations, but this explanation is plausible whether or not the patents themselves are valid, so offers no guidance to us. the absence of some concrete support for the claim that mp3 *players* are patent-encumbered. I think Debian is in denial here. And I think you're engaging in FUD. The claim comes from exactly the same patent holders that you have removed encoders to satisfy. They don't make the distinction between encoders and decoders you have, and we've got away with it until now is not a great legal defence. The fact of the matter is that encoding and decoding are two *very* different operations, and if the same patent holders do have patents covering both, they are most likely separate patents. Moreover, encoding is invariably a more complex process than decoding, and consequently lends itself much better to patent protection in general. You simply haven't presented any evidence that the mp3 decoders Debian ships infringe valid, enforceable patents. Debian's standard for handling patent infringement claims is a quite reasonable one, and it has served us just fine for years. We're not about to start rolling over every time someone, somewhere, makes a vague claim that some bit of software we distribute infringes an unspecified patent -- we'd have no software left to distribute by the time we were done. What if a commercial distributor of Debian code gets sued, then drags Debian and SPI into the case? I'm not used to thinking of Debian's redistributors as being under the control of rat bastards of such caliber. I suppose it's possible, and I suppose that if such a thing came to pass, we would need to take steps to ensure they didn't redistribute Debian in the future. -- Steve Langasek postmodern programmer signature.asc Description: Digital signature
Re: MP3 decoder packaged with XMMS
On 7/18/05, Raul Miller [EMAIL PROTECTED] wrote: On 7/18/05, Michael K. Edwards [EMAIL PROTECTED] wrote: On 7/18/05, Raul Miller [EMAIL PROTECTED] wrote: Are you suggesting that the use of time - frequency domain mapping is not ostensibly covered by the presumptively valid patents? If you want to know what I am suggesting, with regard to a particular patent from the Fraunhofer suite (which I have looked at _very_ quickly and remember that in any case I am not qualified to judge), read http://lists.debian.org/debian-legal/2005/07/msg00141.html . This seems tangential, and does not answer my question. If the question is, is it remotely plausible that Fraunhofer claims to have patented the Discrete Cosine Transform or its application to music compression, the answer is no. How's that? Or, perhaps that all other such techniques which have been in use for quite some time (such as favoring frequencies which the human ear is sensitive to) are all not ostensibly covered by the presumptively valid patents? [more non-answer elided.] If you don't have a simple answer for these questions, please don't imply that you have. Where, exactly, did I imply that? Either you're using the word covered in some way that has nothing to do with the claimed scope of the patent (in which case you are IMHO engaging in empty rhetoric), or you have been grossly misinformed as to the claimed scope of the Fraunhofer patents (and others claimed by reputable players in multimedia compression). I'm guessing both. Cheers, - Michael
Re: MP3 decoder packaged with XMMS
On 7/18/05, Michael K. Edwards [EMAIL PROTECTED] wrote: On 7/18/05, Raul Miller [EMAIL PROTECTED] wrote: Are you suggesting that the use of time - frequency domain mapping is not ostensibly covered by the presumptively valid patents? If you want to know what I am suggesting, with regard to a particular patent from the Fraunhofer suite (which I have looked at _very_ quickly and remember that in any case I am not qualified to judge), read http://lists.debian.org/debian-legal/2005/07/msg00141.html . This seems tangential, and does not answer my question. Or, perhaps that all other such techniques which have been in use for quite some time (such as favoring frequencies which the human ear is sensitive to) are all not ostensibly covered by the presumptively valid patents? [more non-answer elided.] If you don't have a simple answer for these questions, please don't imply that you have. Thanks, -- Raul
Re: MP3 decoder packaged with XMMS
On 7/18/05, Steve Langasek [EMAIL PROTECTED] wrote: [consistently sane and well-judged things about MP3 and patents generally] It does, however, strike me that it would be prudent for someone appropriately qualified (as I am not) to look closely at the claims of US #5,579,430 and, generally, the history of the OCF process described in WO 88/01811. (That's a published international patent application under the Patent Cooperation Treaty, and as I understand it a practitioner can get its full text including diagrams from several sources including Dialog.) I haven't tracked that application down; but a competent-looking survey of the prior art from an interested observer aware of that document may be found at http://gauss.ffii.org/PatentView/EP511692 . Basically, Debian is distributing close cousins to things whose patent infringement status has been brought into question by attempts to enforce those patents on other distributors. I have no idea at what point Debian has actual notice but I would think that it likely that a duty of due care has been triggered under at least one of the world's legal systems. None of the MP3 issues -- even encoders, if you ask me -- seems to be an open-and-shut case of drop it unless competent counsel is optimistic (which I would say that libdts is), but IMHO the question warrants some competent attention. Personally, I would kind of like to see a negotiated outcome with the current Thomson people, whose public record appears reasonable to me. But as it seems very unlikely to me that Debian can scrape together enough good will towards an 3vi1 pat3nt h01d3r to take an olive branch if it were offered with respect to (say) LAME and ffmpeg, let me at least suggest obtaining opinion of competent counsel. Cheers, - Michael (IANADD, IANAL, TINLA, and I don't have any affiliation with Dolby or Fraunhofer)
Re: MP3 decoder packaged with XMMS
On 7/15/05, Michael K. Edwards [EMAIL PROTECTED] wrote: On 7/15/05, Raul Miller [EMAIL PROTECTED] wrote: I very carefully made a distinction between technology described by the patents and patented technology in the message you're responding to. One example of technology where this distinction should be clear is the use of time - frequency domain mapping. Mr. James was obviously referring to the scope of the inventions ostensibly covered by the presumptively valid patents in the Fraunhofer (and possibly Sisvel) suites. Are you suggesting that the use of time - frequency domain mapping is not ostensibly covered by the presumptively valid patents? Or, perhaps that all other such techniques which have been in use for quite some time (such as favoring frequencies which the human ear is sensitive to) are all not ostensibly covered by the presumptively valid patents? Thanks, -- Raul
Re: MP3 decoder packaged with XMMS
On 7/18/05, Raul Miller [EMAIL PROTECTED] wrote: Are you suggesting that the use of time - frequency domain mapping is not ostensibly covered by the presumptively valid patents? If you want to know what I am suggesting, with regard to a particular patent from the Fraunhofer suite (which I have looked at _very_ quickly and remember that in any case I am not qualified to judge), read http://lists.debian.org/debian-legal/2005/07/msg00141.html . I do not submit that I have gotten the _presumptive_ scope of the patent straight, in terms of the rules for how you apply dependent vs. independent claims, since in any case the patent was granted by administrative staff who were woefully confused at the time by both the state of the appellate law and the state of the prior art. AIUI a court of fact has the discretion to more or less completely rewrite the claims of a patent when it is litigated, based on the complete record of what was reduced to practice when by both the inventor and other workers in the field -- although the effect is almost always to retain the idiom of the patent's claims, striking some clauses and merging others to form narrower independent clauses. When I find a reasonably classic and comprehensible opinion at district court level I'll cite it. I will say this, though: all patent agents and attorneys are expected to be well versed in the procedures for prosecuting a patent application through the examination system and in the administrative standards patent examiners apply. They generally attempt to establish the widest possible perimeter as well as a set of more or less defensible fall-back positions. There may well be many patent attorneys that also attempt to explain to their clients what is likely to survive after a patent's claims have been evaluated by a court with the assistance of an interested competitor, competent expert witnesses, and a budget three to five orders of magnitude higher than the examiner's -- but they do so under the seal of attorney-client privilege. Or, perhaps that all other such techniques which have been in use for quite some time (such as favoring frequencies which the human ear is sensitive to) are all not ostensibly covered by the presumptively valid patents? The US number for the patent commonly cited as the MP3 patent is 5,579,430, which I have not yet examined closely. But if 5,924,060 is any indication, Karlheinz Brandenburg and his colleagues informed the patent examiners of the existence in the prior art of telephony-oriented audio compression techniques (such as ADPCM) which model a waveform in the time domain and are quite poorly suited to the signal content of recorded music and the way that the ear and brain process it, as well as closer relatives like Zelenski's Adaptive Transform Coding. They didn't claim to have invented the DCT or its application to recorded sound. They did claim to have reduced the quantization of DCT coefficients to practice according to at least one formula that is both psycho-acoustically and computationally efficient. I don't know enough about the state of the prior art at the time of foreign appl. No. P3629434.9, filed Aug. 29, 1986 (the basis for priority of 5,924,060) to say whether Herr Doktor Brandenburg was correct in his belief that this invention met the non-obvious part of the standard or that it deserved the breadth of claims stated (note that the German patent office granted it first). Note, in particular, his acknowledgment that it differs from ATC principally in the use of a single quantization level across the spectrum in a given block, which is then iteratively adjusted to fit within a bit-rate limit. But to me it sounds like patentable subject matter in all the world's major patent systems, and you'd have to fight it by focusing on the prior art and the scope of the claims rather than shout mathematical method! software patent! Cheers, - Michael (IANAL, TINLA)
Re: MP3 decoder packaged with XMMS
Presumably you are also aware of patents 5,341,457 and 5,627,938, which Lucent has been seeking to enforce against Dolby AC-3. As your encoder appears to use Ehmer's tone masking techniques, which are also cited in the AC-3 standard definition, that litigation may be of interest -- particularly as Dolby obtained in April a summary judgment of non-infringement and there is a real possibility that Lucent's patents will be invalidated altogether if the remainder of the case goes to trial as scheduled in September. Although your psy.c is a bit opaque and I have given these Lucent patents only the briefest of glances, I would say that the '457 patent disclosure resembles the Vorbis encoder more closely than anything else I have seen in the literature. No suggestion that you infringe is implied; I'm just trying to get a handle on how psy.c works and the patent database is the best hook into the primary literature that I am currently holding. I haven't identified which, if any, patents cover Dolby AC-3 qua AC-3 (that's a Dolby trademark, as is Dolby Digital 5.1; the generic name is ATSC Standard A/52). There seems to be a relevant patent pool in DVD space (in which Dolby participates, to the extent of receiving a small royalty on AC-3 encoded DVDs, but may not have contributed any patents AFAICT). There is an interesting list in Appendix A of http://contracts.onecle.com/intervideo/dolby.lic.1999.03.04.shtml but I haven't ground through it and probably won't. The cease and desist letter at http://www4.netbsd.org/Letters/20010803-dolby.html looks to me to be actual notice of nothing whatsoever. Given that Dolby approaches violators even more prejudicially than Thomson does (or used to?), somehow I suspect that if Dolby had a leg to stand on other than their trademarks then there would be some record of their citing a specific patent against A52dec and/or FFmpeg (which remain on SourceForge). IANAL, TINLA, YMMV. I have, however, tracked down the principal DTS patent (#5,956,674) claimed against VideoLan's libdca; but it has such a thicket of claims that I cannot begin to say what might or might not infringe it other than an implementation of DTS itself. I doubt they would bother you, though; their format is wildly different (mixed VQ and ADPCM, specialized subframes to massage transients away, signal-to-mask ratios), and it has the general air of a tweak of a hack to a kludge. So, by reputation, does AC-3; so unless Dolby holds something pretty general (which would surprise me), it also seems unlikely to threaten Vorbis unless you know something I don't. Cheers, - Michael (IANAL, TINLA)
Re: MP3 decoder packaged with XMMS
I wrote: Presumably you are also aware of patents 5,341,457 and 5,627,938, which Lucent has been seeking to enforce against Dolby AC-3. As your encoder appears to use Ehmer's tone masking techniques, which are also cited in the AC-3 standard definition, ... I am of course aware that Ehmer's techniques were published in 1959; but the combination in the claims of the '457 patent is presumptively a valid invention, and I don't grok either it or psy.c well enough to be able to tell whether they coincide. It seems particularly timely to raise the issue since Dolby is quite capable of settling out of court now that they have gotten what they wanted (declarative relief WRT AC-3 and Lucent's patents), and if Xiph.org or someone else wants to intervene to demand resolution of the question of the Lucent patents' validity then the time is presumably now. Cheers, - Michael
Re: MP3 decoder packaged with XMMS
Michael K. Edwards wrote: That's entirely consistent with my (much less informed) understanding of the history. It would be very interesting to know whether the statement at http://ballsome.org/index.php/news/100 reflects their present policy, and if so whether it would offer some degree of equitable-estoppel-based safe harbor for distributors who can demonstrate substantial non-infringing uses as a defense against contributory infringement. 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. I don't see where you got the distributors from, since the note only speaks of personal use. Kind regards, Arnoud Engelfriet -- Arnoud Engelfriet, Dutch European patent attorney - Speaking only for myself Patents, copyright and IPR explained for techies: http://www.iusmentis.com/ -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: MP3 decoder packaged with XMMS
On 7/16/05, Arnoud Engelfriet [EMAIL PROTECTED] 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.) Cheers, - Michael (IANAL, TINLA)
Re: MP3 decoder packaged with XMMS
Michael K. Edwards wrote: 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? Infringement of European patents is a matter of national law (art. 64 EPC). But to the best of my knowledge all European patent laws say this. Dutch patent law for instance says: Art. 53. 1. Subject to the provisions of Articles 54 to 60, a patent shall confer on its owner the exclusive right: a. to make, use, put on the market or resell, hire out or deliver the patented product, or otherwise deal in it in or for his business, or to offer, import or stock it for any of those purposes; Linkname: IViR - Legislation - Netherlands - Patent Act 1995 URL: http://www.ivir.nl/legislation/nl/patentact1995.html Section 60: Meaning of infringement ... (5) An act which, apart from this subsection, would constitute an infringement of a patent for an invention shall not do so if - (a) it is done privately and for purposes which are not commercial; Linkname: PATENTS ACT 1977 URL: http://www.jenkins-ip.com/patlaw/pa77.htm#s60 I can't find an English text for German patent law online, so I hope you can read German: ? 11 Erlaubte Handlungen Die Wirkung des Patents erstreckt sich nicht auf 1. Handlungen, die im privaten Bereich zu nichtgewerblichen Zwecken vorgenommen werden; Linkname: Patentgesetz bis 1.1.2002 URL: http://2kpatent.de/de/patentgesetz.htm 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. Right. In most patent laws, the act of distribution of a product is by itself a direct infringement. Even when the distribution is intended for individuals that want to privately use the product. So I don't think this is going to help you much. This of course presumes that a sequence of bits is a product in patent law. I'm not aware of any caselaw either way. But it does seem likey that this would be covered by the essential element clause in patent law. See e.g. article 60(2) and (3) UK Patent Act: Section 60: Meaning of infringement (2) Subject to the following provisions of this section, a person (other than the proprietor of the patent) also infringes a patent for an invention if while the patent is in force and without the consent of the proprietor, he supplies or offers to supply in the United Kingdom a person other than a licensee or other person entitled to work the invention with any of the means, relating to an essential element of the invention, for putting the invention into effect when he knows, or it is obvious to a reasonable person in the circumstances, that those means are suitable for putting, and are intended to put, the invention into effect in the United Kingdom. (3) subsection (2) above shall not apply to the supply or offer of a staple commercial product unless the supply or the offer is made for the purpose of inducing the person supplied or, as the case may be, the person to whom the offer is made to do an act which constitutes an infringement of the patent by virtue of subsection (1) above. One could argue that other person entitled to work the invention can mean a person performing the acts privately and for purposes which are not commercial. I'd have to check with a UK colleague whether that's accurate. Arnoud -- Arnoud Engelfriet, Dutch European patent attorney - Speaking only for myself Patents, copyright and IPR explained for techies: http://www.iusmentis.com/ -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: MP3 decoder packaged with XMMS
On Fri, Jul 15, 2005 at 09:47:22PM -0700, Steve Langasek wrote: AFAIK there is no public evidence that Red Hat's (which is who I assume you're principally referring to) decision not to ship mp3-playing software is grounded in concerns about actively enforced patents. FWIW, I've discussed this with a Red Hat employee at last year's LinuxTag. The reason they stay away from multimedia stuff is that they are afraid of being sued over patent infringement. They currently have a lot of money in the bank, which makes them an interesting target. Diego -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: MP3 decoder packaged with XMMS
On 7/16/05, Arnoud Engelfriet [EMAIL PROTECTED] wrote: [snip] (5) An act which, apart from this subsection, would constitute an infringement of a patent for an invention shall not do so if - (a) it is done privately and for purposes which are not commercial; OK, this makes sense. Probably means I can bake cookies from a patented recipe without infringing the patent as long as I don't turn around and hold a bake sale. My execrable Deutsch is still enough to tell me that German law is similar. 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. Right. In most patent laws, the act of distribution of a product is by itself a direct infringement. Even when the distribution is intended for individuals that want to privately use the product. So I don't think this is going to help you much. Right, that's the same as US law AIUI. This of course presumes that a sequence of bits is a product in patent law. I'm not aware of any caselaw either way. But it does seem likey that this would be covered by the essential element clause in patent law. See e.g. article 60(2) and (3) UK Patent Act: [snip] It would clearly be a misreading of the legislative intent to say that neither manufacturer nor distributor nor end user needs to obtain a patent license just because the end user isn't making commercial use of the product. One could argue that other person entitled to work the invention can mean a person performing the acts privately and for purposes which are not commercial. I'd have to check with a UK colleague whether that's accurate. Probably not, if the only basis for that entitlement is the statutory out provided in 60 (5) (a). But if Thomson actually were to express the intention of exempting private users of an open source implementation from the need for a patent license ever to have been obtained for _their_copy_ -- i. e., if in Thomson's official view their usage (transcoding other audio formats to and from MP3s for personal use) is such that neither upstream, nor packager, nor end user needs to pay a per-unit fee for that copy -- that's a very different ballgame. (For DFSG purposes, it would of course also be necessary to verify that no per-implementation fee was demanded if one acts in good faith to communicate the limits of this safety zone to recipients, lest downstream developers should be obligated to pay a lump sum when renaming the package or merging it into something larger.) I'm not saying that I think that Thomson is offering such a deal, but I'm not saying they aren't (or haven't already) either. My impression is that they are focusing on extracting revenues in return for the mastering of MP3s for purposes of commercial distribution. It's a fine point and I know there are some DDs who won't look at it this way, but if the software authors aren't attempting to discriminate among fields of endeavor -- only disclaiming responsibility for obtaining patent rights from a third party on anyone's behalf, and advising recipients that upstream focuses on the substantial non-infringing uses (personal use and use by patent licensees) that protect upstream and distributor from allegations of infringement -- then I think there's at least a case for calling it DFSG-free. I care about this principally because I'd like to see a model square deal that qualifies as free speech whether or not it's free beer. Commercial, end-user-oriented MP3 encoders, hardware and software, compete with one another and with other formats anyway; will they really be all that pissed at Thomson for giving the green light to LAME and its like? As psycho-acoustic research tools, toys for the ABXers at Hydrogenaudio, and building blocks for product mock-ups under the umbrella of a patent sharing agreement, LAME and libmad and ffmpeg and so forth are interesting and useful without cutting unduly into the revenue stream that amortizes off the cost of research. If Debian and Thomson knock this domino over, someday even DeCSS may be blessed by the powers that be. (Though IMHO the only non-infringing use it really has is the product mock-up scenario.) Cheers, - Michael (IANADD, IANAL, TINLA)
Re: MP3 decoder packaged with XMMS
(Just to make it clear: I'm aware that libmad is decode-only and that the evidence is much less strong that MP3 decoding is within the scope of the Fraunhofer patents than that encoding is.) Cheers, - Michael
Re: MP3 decoder packaged with XMMS
On Sat, Jul 16, 2005 at 11:43:27AM +0200, Diego Biurrun wrote: On Fri, Jul 15, 2005 at 09:47:22PM -0700, Steve Langasek wrote: AFAIK there is no public evidence that Red Hat's (which is who I assume you're principally referring to) decision not to ship mp3-playing software is grounded in concerns about actively enforced patents. FWIW, I've discussed this with a Red Hat employee at last year's LinuxTag. The reason they stay away from multimedia stuff is that they are afraid of being sued over patent infringement. They currently have a lot of money in the bank, which makes them an interesting target. Yes, the more assets a company has, the more paranoid they become about protecting them. Fear of being sued over patent infringement doesn't imply a belief that any particular patent is valid, or that any particular piece of software is infringing -- it merely implies a belief that a certain class of software is, as a whole, more likely to lead to pesky, expensive lawsuits. And lawsuits are almost always pesky and expensive, regardless of their validity. -- Steve Langasek postmodern programmer signature.asc Description: Digital signature
Re: MP3 decoder packaged with XMMS
On Tue, Jul 12, 2005 at 01:49:17PM -0300, Humberto Massa Guimarães wrote: ** Diego Biurrun :: Maybe it's time to create some sort of patent/ftp/XXX policy then. The core of this thread revolves around the problem that Debian's stance towards patents is unclear and inconsistent. Some programs are jugded impossible to package due to patent problems, while others aren't. This is further complicated by the fact that some MP3 encoders and multimedia applications are packaged while others are not, even though they do the same things and thus fall under the scope of the same patents. I was under the impression that Debian *did* have a policy: if the patent is enforced, towards it, then the software will go to non_US -- to the benefit of the sane jurisdictions (as is the EU, in principle). And to what extent is that policy followed? Neither libdts nor the many multimedia players available in Debian appear to be in non-US. How can I get an overview of all the packages in non-US? Looking on Debian mirrors just reveals empty packages files: http://non-us.debian.org/debian-non-US/dists/sarge/non-US/main/binary-i386/Packages ftp://sunsite.informatik.rwth-aachen.de/pub/Linux/debian-non-US/dists/sarge/non-US/main/binary-i386/Packages VideoLAN is hosted by ECP, a university from Paris where the project originated. DTS Inc. sent ECP a cease and desist letter stating that they should stop developing libdts, get a patent license from them or prepare to get sued. The ECP lawyer tried to settle amicably without success. DTS requested fees amounting to thousands of dollars per day and the university did not want to go to court. That was more than one year ago and libdts is no longer distributed on its own and has been removed from VLC. Furthermore development on the library has stopped. That's as good a precedent for patent enforcement as you'll get. FUD at its best, but it worked. This is how the patent scare works. Not down here, thanks God and our corrupt lawmakers. Seriously. Software patents are just plain Evil. Yes, I wholeheartedly agree, all of them without exception. *sigh* Diego -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: MP3 decoder packaged with XMMS
On Sat, Jul 16, 2005 at 03:20:12AM -0700, Steve Langasek wrote: On Sat, Jul 16, 2005 at 11:43:27AM +0200, Diego Biurrun wrote: On Fri, Jul 15, 2005 at 09:47:22PM -0700, Steve Langasek wrote: AFAIK there is no public evidence that Red Hat's (which is who I assume you're principally referring to) decision not to ship mp3-playing software is grounded in concerns about actively enforced patents. FWIW, I've discussed this with a Red Hat employee at last year's LinuxTag. The reason they stay away from multimedia stuff is that they are afraid of being sued over patent infringement. They currently have a lot of money in the bank, which makes them an interesting target. Yes, the more assets a company has, the more paranoid they become about protecting them. Fear of being sued over patent infringement doesn't imply a belief that any particular patent is valid, or that any particular piece of software is infringing -- it merely implies a belief that a certain class of software is, as a whole, more likely to lead to pesky, expensive lawsuits. And lawsuits are almost always pesky and expensive, regardless of their validity. 100% agreed. Often lawsuits are settled just to get rid of the hassle at a cost that is lower than the pain that going through the lawsuit would imply... Ironically Debian in this case is in the fortunate situation of having near-empty pockets that are unlikely to incite somebody to sue just to get a share of it. Diego -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: MP3 decoder packaged with XMMS
On Sat, Jul 16, 2005 at 03:09:20AM -0700, Michael K. Edwards wrote: If Debian and Thomson knock this domino over, someday even DeCSS may be blessed by the powers that be. (Though IMHO the only non-infringing use it really has is the product mock-up scenario.) WTF? How about watching DVDs? Diego -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: MP3 decoder packaged with XMMS
On 7/16/05, Diego Biurrun [EMAIL PROTECTED] wrote: On Sat, Jul 16, 2005 at 03:09:20AM -0700, Michael K. Edwards wrote: If Debian and Thomson knock this domino over, someday even DeCSS may be blessed by the powers that be. (Though IMHO the only non-infringing use it really has is the product mock-up scenario.) WTF? How about watching DVDs? That requires, AFAICT, a license for the relevant patents from the relevant patent holders. AFAIK CSS itself isn't patented (or patentable) but the typical license agreement for some bits of the DVD technology suite that are patented is conditioned on respecting the whole scheme of copy protection, CSS included. Don't blame me, I didn't design the system, I don't pull the puppet strings attached to Jack Valenti, I think CSS is ill designed and ill conceived, etc., etc. I'm just telling it like it is. You wanna go up against money and power wielded by very large dinosaurs, have fun -- but don't drag the bloody operating system into the trenches with you, OK? Cheers, - Michael (IANAL, TINLA)
Re: MP3 decoder packaged with XMMS
Michael K. Edwards wrote: On 7/16/05, Arnoud Engelfriet [EMAIL PROTECTED] wrote: This of course presumes that a sequence of bits is a product in patent law. I'm not aware of any caselaw either way. But it does seem likey that this would be covered by the essential element clause in patent law. See e.g. article 60(2) and (3) UK Patent Act: [snip] It would clearly be a misreading of the legislative intent to say that neither manufacturer nor distributor nor end user needs to obtain a patent license just because the end user isn't making commercial use of the product. Note I was talking about the essential element of a patent. That's not the same thing as the patented product. Distribution of such a product is always infringement. If you don't distribute the product, but instead only an essential part thereof, then you enter a different area of patent law. Probably not, if the only basis for that entitlement is the statutory out provided in 60 (5) (a). But if Thomson actually were to express the intention of exempting private users of an open source implementation from the need for a patent license ever to have been obtained for _their_copy_ I'm not sure where you get that, but it certainly doesn't seem to be the intent of Thomson's statement quoted earlier. All they said was private use does not need a license. They were very careful to avoid statements about (noncommercial) distribution. Being Dutch I see a parallel with our law on a certain plant - feel free to smoke it, but if you sell it, you're in trouble. I'm not saying that I think that Thomson is offering such a deal, but I'm not saying they aren't (or haven't already) either. My impression is that they are focusing on extracting revenues in return for the mastering of MP3s for purposes of commercial distribution. That's my impression as well. It doesn't make sense to go after non-commercial distributions, since there's no license money to be obtained. But if the non-commercial distribution hurts the license stream, then the patent holder could consider an injunction. Arnoud -- Arnoud Engelfriet, Dutch European patent attorney - Speaking only for myself Patents, copyright and IPR explained for techies: http://www.iusmentis.com/ -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: MP3 decoder packaged with XMMS
I can't seem to find the message you're replying to, by the way. But it's not surprising that it's hard to follow a thread, given that Humberto continues to break threads, ignoring the damage it does to a conversation. On Sat, Jul 16, 2005 at 01:04:47PM +0200, Diego Biurrun wrote: On Tue, Jul 12, 2005 at 01:49:17PM -0300, Humberto Massa Guimarães wrote: I was under the impression that Debian *did* have a policy: if the patent is enforced, towards it, then the software will go to non_US -- to the benefit of the sane jurisdictions (as is the EU, in principle). And to what extent is that policy followed? Neither libdts nor the many multimedia players available in Debian appear to be in non-US. As far as I know, non-US never had anything to do with patents and was only used for crypto, due to US export regulations, and Debian has never had a policy of distributing software violating actively-enforced patents at all. I'm not sure where Humberto got that idea. Non-US meant legal to use in the US, but not freely distributable from inside the US out, not can't be used or distributed inside the US at all. That's why it was useful for crypto, where the problem was export regulations; US users could add non-us to their sources without worry. How can I get an overview of all the packages in non-US? Looking on Debian mirrors just reveals empty packages files: Non-US is no longer used. -- Glenn Maynard -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: MP3 decoder packaged with XMMS
On Sat, Jul 16, 2005 at 07:46:37AM -0400, Glenn Maynard wrote: On Sat, Jul 16, 2005 at 01:04:47PM +0200, Diego Biurrun wrote: On Tue, Jul 12, 2005 at 01:49:17PM -0300, Humberto Massa Guimarães wrote: I was under the impression that Debian *did* have a policy: if the patent is enforced, towards it, then the software will go to non_US -- to the benefit of the sane jurisdictions (as is the EU, in principle). And to what extent is that policy followed? Neither libdts nor the many multimedia players available in Debian appear to be in non-US. As far as I know, non-US never had anything to do with patents and was only used for crypto, due to US export regulations, and Debian has never had a policy of distributing software violating actively-enforced patents at all. I'm not sure where Humberto got that idea. That was my recollection of things, however, http://www.debian.org/distrib/packages states: Non-US/Main Packages in this area are free themselves but cannot be exported from a server in the U.S. Non-US/Non-Free Packages in this area have some onerous license condition restricting use or redistribution of the software. They cannot be exported from the U.S. because they are encryption software packages that are not handled by the export control procedure that is used for the packages in Main or they cannot be stored on a server in the U.S because they are encumbered by patent issues. so perhaps that was what Humberto had in mind. How can I get an overview of all the packages in non-US? Looking on Debian mirrors just reveals empty packages files: Non-US is no longer used. That explains my confusion. I was under that same impression but believed that Humberto might know better than me. I presume that Non-US/Non-Free is no longer used as well? Diego -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: MP3 decoder packaged with XMMS
On Sat, 16 Jul 2005 03:09:20 -0700 Michael K. Edwards wrote: It's a fine point and I know there are some DDs who won't look at it this way, but if the software authors aren't attempting to discriminate among fields of endeavor -- only disclaiming responsibility for obtaining patent rights from a third party on anyone's behalf, and advising recipients that upstream focuses on the substantial non-infringing uses (personal use and use by patent licensees) that protect upstream and distributor from allegations of infringement -- then I think there's at least a case for calling it DFSG-free. I really doubt that a package which requires (patent) royalty payment for use in certain fields of endeavor can possibly be called DFSG-free. At least, it seems that it couldn't satisfy DFSG#6: even if the package authors do not want to discriminate, external factors (i.e. patents) do discriminate anyway. -- :-( This Universe is buggy! Where's the Creator's BTS? ;-) .. Francesco Poli GnuPG Key ID = DD6DFCF4 Key fingerprint = C979 F34B 27CE 5CD8 DC12 31B5 78F4 279B DD6D FCF4 pgpmCp6vuQ3ns.pgp Description: PGP signature
Re: MP3 decoder packaged with XMMS
On Sat, 16 Jul 2005 13:04:47 +0200 Diego Biurrun wrote: On Tue, Jul 12, 2005 at 01:49:17PM -0300, Humberto Massa Guimarães wrote: [...] I was under the impression that Debian *did* have a policy: if the patent is enforced, towards it, then the software will go to non_US -- to the benefit of the sane jurisdictions (as is the EU, in principle). And to what extent is that policy followed? Neither libdts nor the many multimedia players available in Debian appear to be in non-US. How can I get an overview of all the packages in non-US? Looking on Debian mirrors just reveals empty packages files: http://non-us.debian.org/debian-non-US/dists/sarge/non-US/main/binary-i386/Packages Actually, AIUI, this is not (and never was) the role of non-US. non-US was used to distribute software that couldn't be exported from the USA to other countries. This prohibition was due to some (absurd) US laws regarding strong cryptography (seen as a *weapon*). However US laws didn't forbid anyone from *importing* the same software into the USA from abroad. The consequence was that a server placed outside of the US homeland could distribute these export-restricted software tools to anyone everywhere. non-us.debian.org was such a server. The only necessary precaution was that US citizens had to remember to *not* redistribute any package got from non-us.debian.org to people outside USA. Now that those US laws have been heavily relaxed, there's no point anymore in having a non-US section. As you can read in Sarge release notes[1], non-US is now obsoleted. [1] http://www.debian.org/releases/sarge/releasenotes -- :-( This Universe is buggy! Where's the Creator's BTS? ;-) .. Francesco Poli GnuPG Key ID = DD6DFCF4 Key fingerprint = C979 F34B 27CE 5CD8 DC12 31B5 78F4 279B DD6D FCF4 pgp1no7bS8Hci.pgp Description: PGP signature
Re: MP3 decoder packaged with XMMS
On Tue, Jul 12, 2005 at 08:06:56PM +0300, Don Armstrong wrote: On Tue, 12 Jul 2005, Diego Biurrun wrote: Maybe it's time to create some sort of patent/ftp/XXX policy then. Feel free to propose one; however you should attempt to discover first what the effective policy is that the ftpmasters are imposing upon the archive. Otherwise all you'll do is continuing to tilt against windmills. I don't think I'm the right person to propose such a policy since I am not a Debian developer. If I had to propose one, it would have to be applied to both new and existing packages. Programs not complying with the policy would not be allowed to enter Debian and those already in Debian would have to be removed. This is further complicated by the fact that some MP3 encoders and multimedia applications are packaged while others are not, even though they do the same things and thus fall under the scope of the same patents. Which packages exactly are being discussed here? [While many would prefer not to discuss details of patents, I'd at least appreciate being pointed to specific packages and ideally patent numbers concerning them.] Sorry, I misspoke regarding MP3 encoders, Debian does not include MP3 encoders, it does include *MPEG* encoders, like FFmpeg, while it does not include MEncoder. Debian includes many multimedia players, xine, vlc and avifile being the most popular examples while it does not include MPlayer. Diego -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: MP3 decoder packaged with XMMS
On Sat, Jul 16, 2005 at 05:03:13PM +0200, Francesco Poli wrote: On Sat, 16 Jul 2005 13:04:47 +0200 Diego Biurrun wrote: On Tue, Jul 12, 2005 at 01:49:17PM -0300, Humberto Massa Guimarães wrote: [...] I was under the impression that Debian *did* have a policy: if the patent is enforced, towards it, then the software will go to non_US -- to the benefit of the sane jurisdictions (as is the EU, in principle). And to what extent is that policy followed? Neither libdts nor the many multimedia players available in Debian appear to be in non-US. How can I get an overview of all the packages in non-US? Looking on Debian mirrors just reveals empty packages files: http://non-us.debian.org/debian-non-US/dists/sarge/non-US/main/binary-i386/Packages Actually, AIUI, this is not (and never was) the role of non-US. non-US was used to distribute software that couldn't be exported from the USA to other countries. This prohibition was due to some (absurd) US laws regarding strong cryptography (seen as a *weapon*). However US laws didn't forbid anyone from *importing* the same software into the USA from abroad. The consequence was that a server placed outside of the US homeland could distribute these export-restricted software tools to anyone everywhere. non-us.debian.org was such a server. The only necessary precaution was that US citizens had to remember to *not* redistribute any package got from non-us.debian.org to people outside USA. Now that those US laws have been heavily relaxed, there's no point anymore in having a non-US section. As you can read in Sarge release notes[1], non-US is now obsoleted. [1] http://www.debian.org/releases/sarge/releasenotes That was my original understanding that got confused by posts in this thread. The fact that http://www.debian.org/distrib/packages is not updated to reflect the obsolescence of non-US did not help. Thanks for the info Diego -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: MP3 decoder packaged with XMMS
On Sat, 16 Jul 2005, Diego Biurrun wrote: On Tue, Jul 12, 2005 at 08:06:56PM +0300, Don Armstrong wrote: On Tue, 12 Jul 2005, Diego Biurrun wrote: Maybe it's time to create some sort of patent/ftp/XXX policy then. Feel free to propose one; however you should attempt to discover first what the effective policy is that the ftpmasters are imposing upon the archive. I don't think I'm the right person to propose such a policy since I am not a Debian developer. That doesn't mean that you can't write it and try to get developers to second it.[1] If I had to propose one, it would have to be applied to both new and existing packages. That's kind of the point of a policy, yes. Which packages exactly are being discussed here? Sorry, I misspoke regarding MP3 encoders, Debian does not include MP3 encoders, it does include *MPEG* encoders, like FFmpeg, while it does not include MEncoder. And what patents are we refering to here that are actively being enforced? Debian includes many multimedia players, xine, vlc and avifile being the most popular examples while it does not include MPlayer. These are decoders for the most part. Don Armstrong 1: Of course, the fact that no developer has bothered to write such a thing should give you pause; we clearly feel that the ftpmasters are up to the task of setting a sane policy in this regard and we don't need to micromanage them. -- Every gun that is made, every warship launched, every rocket fired signifies in the final sense, a theft from those who hunger and are not fed, those who are cold and are not clothed. This world in arms is not spending money alone. It is spending the sweat of its laborers, the genius of its scientists, the hopes of its children. This is not a way of life at all in any true sense. Under the clouds of war, it is humanity hanging on a cross of iron. -- Dwight Eisenhower, April 16, 1953 http://www.donarmstrong.com http://rzlab.ucr.edu -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: MP3 decoder packaged with XMMS
Michael K. Edwards [EMAIL PROTECTED] wrote: [...] If I were defending, say, an Ogg/Vorbis implementation [...] I would argue that a wavelet transform is sufficiently different [...] Wavelet transforms are not the only thing the format supports, but it may be usable to defend a particular encoder. If I were defending an MP3 decoder, I would say instead that the decoder doesn't realize the invention because it doesn't know or care whether the encoder used the quantization scheme that the disclosure teaches. That seems like it might be tenable in general, though. -- MJR/slef My Opinion Only: see http://people.debian.org/~mjr/ Please follow http://www.uk.debian.org/MailingLists/#codeofconduct -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: MP3 decoder packaged with XMMS
On 7/13/05, Raul Miller [EMAIL PROTECTED] wrote: It's difficult to create JPEG image rendering software without using technologies described by MP3 patents. On 7/13/05, Michael K. Edwards [EMAIL PROTECTED] wrote: So do tell us where MP3 patents fit -- what patents, which claims, and what part of JPEG compression? I very carefully made a distinction between technology described by the patents and patented technology in the message you're responding to. One example of technology where this distinction should be clear is the use of time - frequency domain mapping. -- Raul
Re: MP3 decoder packaged with XMMS
On 7/15/05, Raul Miller [EMAIL PROTECTED] wrote: I very carefully made a distinction between technology described by the patents and patented technology in the message you're responding to. One example of technology where this distinction should be clear is the use of time - frequency domain mapping. Mr. James was obviously referring to the scope of the inventions ostensibly covered by the presumptively valid patents in the Fraunhofer (and possibly Sisvel) suites. Cheers, - Michael
Re: MP3 decoder packaged with XMMS
Michael K. Edwards wrote: The Federal Circuit, en banc, characterized one defendant's reliance on a similar statistic (offered by their counsel and apparently relied on in good faith to the extent that that means anything) as flagrant disregard of presumptively valid patents without analysis -- and I can find no better words for it. I am not inclined to give any weight to the Federal Circuit statement you quoted given that it seems to be from before the rejection of the No legal opinion == wilful infringement assumption made by that Circuit. As a matter of fact, a ridiculously large number of the patents granted by the US Patent Office these days are obviously invalid. But it's still no basis for a claim that you have, or anyone else has, exercised due care with regard to any particular patent, let alone a suite of dozens that has withstood the kind of scrutiny that Fraunhofer's has. Perhaps due care would be sufficiently exercised by the following: Looking at the mp3 patent titles, none of them claim to cover decoding. Anyway, Fraunhofer's patents are all invalid in Europe under the European Patent Convention, which prohibits patents on mathematics. Perhaps it's time to revive non-US for distribution of mp3 decoders. -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: MP3 decoder packaged with XMMS
I have copied the Executive Contact and the Legal Counsel for Xiph.org on this message. Please drop them on follow-ups that are not relevant to Ogg/Vorbis. Mr. Rosedale and Mr. Moffitt: the topic of MP3 patents arose on debian-legal (thread at http://lists.debian.org/debian-legal/2005/07/msg00081.html ) and we could all use some competent advice. On 15 Jul 2005 09:05:10 GMT, MJ Ray [EMAIL PROTECTED] wrote: Michael K. Edwards [EMAIL PROTECTED] wrote: [...] If I were defending, say, an Ogg/Vorbis implementation [...] I would argue that a wavelet transform is sufficiently different [...] Wavelet transforms are not the only thing the format supports, but it may be usable to defend a particular encoder. Do you happen to know whether the Xiph.org team has retained competent counsel to evaluate the possible impact of the Fraunhofer and Sisvel patent suites on Ogg/Vorbis? (They claim that Ogg/Vorbis is patent-and-royalty-free at http://www.xiph.org/ogg/vorbis/ , which is pretty strong language.) If not, maybe Fluendo would fund the legal fees -- they seem willing to pay money to random lawyers for (IMHO, IANAL) dubious opinions and to post the result publicly (Google: gstreamer Moglen). Personally, I would be little more inclined to rely on the continued availability of royalty-free open-source Ogg/Vorbis encoders than their MP3 equivalents without some indication that someone competent is on record as to the basis for a reasonable belief that they do not infringe the Fraunhofer suite. Cheers, - Michael (IANAL, TINLA)
Re: MP3 decoder packaged with XMMS
On 7/15/05, Nathanael Nerode [EMAIL PROTECTED] wrote: Michael K. Edwards wrote: The Federal Circuit, en banc, characterized one defendant's reliance on a similar statistic (offered by their counsel and apparently relied on in good faith to the extent that that means anything) as flagrant disregard of presumptively valid patents without analysis -- and I can find no better words for it. I am not inclined to give any weight to the Federal Circuit statement you quoted given that it seems to be from before the rejection of the No legal opinion == wilful infringement assumption made by that Circuit. As a matter of fact, a ridiculously large number of the patents granted by the US Patent Office these days are obviously invalid. Er, that's a quote from the very opinion that breached stare decisis in order to dispose of the adverse inference rule. If you had a later revision of the law (statutory or judicial) in mind, now would be a good time to cite it. But it's still no basis for a claim that you have, or anyone else has, exercised due care with regard to any particular patent, let alone a suite of dozens that has withstood the kind of scrutiny that Fraunhofer's has. Perhaps due care would be sufficiently exercised by the following: Looking at the mp3 patent titles, none of them claim to cover decoding. Anyway, Fraunhofer's patents are all invalid in Europe under the European Patent Convention, which prohibits patents on mathematics. Perhaps it's time to revive non-US for distribution of mp3 decoders. Do you have opinion of competent counsel in support of that assertion? If the patent that I picked to look at closely is any indication, I doubt that the European Patent Convention invalidates it -- but I am not qualified to judge, and I suspect that neither are you. Cheers, - Michael (IANAL, TINLA)
Re: MP3 decoder packaged with XMMS
Oh, and by the way: get the letter quoted at http://ballsome.org/index.php/news/100 on corporate letterhead, and Debian and most of its users are probably (IMHO, IANAL, TINLA) golden WRT both MP3 encoding and decoding, anywhere that reliance to one's detriment and substantial non-infringing use have any meaning. Are we all so blinded by anti-patent ideology that we don't bother to do trivial homework like writing to the patent holder for clarification? Cheers, - Michael
Re: MP3 decoder packaged with XMMS
I wrote: Personally, I would be little more inclined to rely on the continued availability of royalty-free open-source Ogg/Vorbis encoders than their MP3 equivalents without some indication that someone competent is on record as to the basis for a reasonable belief that they do not infringe the Fraunhofer suite. In case it seemed otherwise: I am very much pro-Ogg/Vorbis. I am not particularly pro-software-patents but I am not under the illusion that the MP3 patents have less traction in the world's major legal systems than numerous others which have been litigated successfully by their holders. I have recently become aware of the details of the duty of due care standard apparently last modified by the Federal Circuit court in Knorr-Bremse v. Dana (2004), and while I am not aware of any personal risk to myself, it would be nice to know what there is to know about the state of the state, so to speak. Cheers, - Michael (IANAL, TINLA)
Re: MP3 decoder packaged with XMMS
I have copied the Executive Contact and the Legal Counsel for Xiph.org on this message. Please drop them on follow-ups that are not relevant to Ogg/Vorbis. Mr. Rosedale and Mr. Moffitt: the topic of MP3 patents arose on debian-legal (thread at http://lists.debian.org/debian-legal/2005/07/msg00081.html ) and we could all use some competent advice. Just a quick note on this thread. Time seems to have erased the memory of Thompson going after everyone. 8hz-enc, bladeenc, lame, and many other projects have shut down (from cease and desist letters) or refuse to distribute binaries because the MP3 suite of patents _is_ actively enforced. Try going out and finding unlicensed implementations outside the Free Software and Open Source worlds. That out of the way, I will address the issues raised below. If I were defending, say, an Ogg/Vorbis implementation [...] I would argue that a wavelet transform is sufficiently different [...] Wavelet transforms are not the only thing the format supports, but it may be usable to defend a particular encoder. I don't believe there are wavelet transforms in Ogg Vorbis. These are planned for some future incompatible update. Do you happen to know whether the Xiph.org team has retained competent counsel to evaluate the possible impact of the Fraunhofer and Sisvel patent suites on Ogg/Vorbis? (They claim that Ogg/Vorbis is patent-and-royalty-free at http://www.xiph.org/ogg/vorbis/ , which is pretty strong language.) If not, maybe Fluendo would fund the legal fees -- they seem willing to pay money to random lawyers for (IMHO, IANAL) dubious opinions and to post the result publicly (Google: gstreamer Moglen). Before we released Ogg Vorbis beta 1, we did indeed hire a patent specializing attorney to go over the MP3 suite of patents. He only thought it necessary to issue a formal opinion on a single one of these patents. We were advised by him, and other attorney's, that the specifics of this opinion could not be divulged publically. Since that time (around 2000,2001 I believe), I believe several companies have also had lawyers look over this issue. RedHat ships Ogg Vorbis, and they are obviously aware of these patent problems due to their removal of MP3 related software, so I assume they made this decision based on sound legal advice. I don't believe anyone is going to publically share their findings any more than we have for the same reasons our lawyer original gave. New patents come up all the time. No one can afford to keep track of them all, or to have attorney's issue legal opinions on anything related. We have done informal, but educated, analysis on many patents that others have brought to our attention, and never found anything worth troubling a lawyer over. Also, we originally intended the patent-free part of our software, so we based many algorithms on old, widely published results, and avoided many methods that would lead to patent trouble. Many large corporations ship Ogg Vorbis with their products, including Microsoft, RealNetworks, EA Games, and many more. There are plenty of billion dollar companies to go after for infringement, should infringement actually be occuring due to Ogg Vorbis. The fact the none of these companies has been, to anyone's knowledge, threatened with litigation over related patents speaks volumes. We've been around for 5 years, and we've taken this issue seriously the entire time. Personally, I would be little more inclined to rely on the continued availability of royalty-free open-source Ogg/Vorbis encoders than their MP3 equivalents without some indication that someone competent is on record as to the basis for a reasonable belief that they do not infringe the Fraunhofer suite. What I have said above we thought was common knowledge. There are probably very few Free Software projects that have dealt with this issue as seriously as Xiph.org. One last note: I am still on the board of the Xiph.org Foundation, but Monty [EMAIL PROTECTED] is currently the Executive Director. Tom Rosedale is our current legal counsel, but was not the attorney who did the patent review, nor was he actively involved with us at the time the patent review was done. Feel free to continue copying me on the discussion. As a fellow debian developer, I'm quite interested in this issue from both sides. jack. -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: MP3 decoder packaged with XMMS
Jack Moffitt [EMAIL PROTECTED] writes: [snip, chop, trim] Before we released Ogg Vorbis beta 1, we did indeed hire a patent specializing attorney to go over the MP3 suite of patents. He only thought it necessary to issue a formal opinion on a single one of these patents. We were advised by him, and other attorney's, that the specifics of this opinion could not be divulged publically. Since that time (around 2000,2001 I believe), I believe several companies have also had lawyers look over this issue. Thanks for this very informative statement. Two questions spring to mind, one MP3-technical and one patent-technical: 1. which patent was the one worth issuing an opinion on? 2. why was the opinion not to be divulged publically? Clearly, the specific patent is a matter of interest for those developing in this area so they can effectively get advice. The other question is what kind of useful advice cannot be propagated, and why?... cheers, Rich. -- rich walker | Shadow Robot Company | [EMAIL PROTECTED] technical director 251 Liverpool Road | need a Hand? London N1 1LX | +UK 20 7700 2487 www.shadow.org.uk/products/newhand.shtml -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: MP3 decoder packaged with XMMS
Thanks very much to Mr. Moffitt for weighing in! On 7/15/05, Jack Moffitt [EMAIL PROTECTED] wrote: Just a quick note on this thread. Time seems to have erased the memory of Thompson going after everyone. 8hz-enc, bladeenc, lame, and many other projects have shut down (from cease and desist letters) or refuse to distribute binaries because the MP3 suite of patents _is_ actively enforced. Try going out and finding unlicensed implementations outside the Free Software and Open Source worlds. That out of the way, I will address the issues raised below. That's entirely consistent with my (much less informed) understanding of the history. It would be very interesting to know whether the statement at http://ballsome.org/index.php/news/100 reflects their present policy, and if so whether it would offer some degree of equitable-estoppel-based safe harbor for distributors who can demonstrate substantial non-infringing uses as a defense against contributory infringement. There's no shame, and potentially much advantage, in providing cross-conversion tools between a genuinely free format and the current market leader. I don't believe there are wavelet transforms in Ogg Vorbis. These are planned for some future incompatible update. Can you point me to a brief but technical summary of some of the Ogg Vorbis codecs? I would be curious to compare them against the MP3 techniques, about which I know at least a little bit. Before we released Ogg Vorbis beta 1, we did indeed hire a patent specializing attorney to go over the MP3 suite of patents. He only thought it necessary to issue a formal opinion on a single one of these patents. We were advised by him, and other attorney's, that the specifics of this opinion could not be divulged publically. Since that time (around 2000,2001 I believe), I believe several companies have also had lawyers look over this issue. RedHat ships Ogg Vorbis, and they are obviously aware of these patent problems due to their removal of MP3 related software, so I assume they made this decision based on sound legal advice. I don't believe anyone is going to publically share their findings any more than we have for the same reasons our lawyer original gave. That's understandable. Any chance you could at least identify which patent warranted a formal opinion? New patents come up all the time. No one can afford to keep track of them all, or to have attorney's issue legal opinions on anything related. We have done informal, but educated, analysis on many patents that others have brought to our attention, and never found anything worth troubling a lawyer over. Also, we originally intended the patent-free part of our software, so we based many algorithms on old, widely published results, and avoided many methods that would lead to patent trouble. Can you enlarge at all on your approach to duty of due care? I have only recently run across Knorr-Bremse and am ignorant of how this works in practice when the patents are flying thick and fast. Many large corporations ship Ogg Vorbis with their products, including Microsoft, RealNetworks, EA Games, and many more. There are plenty of billion dollar companies to go after for infringement, should infringement actually be occuring due to Ogg Vorbis. The fact the none of these companies has been, to anyone's knowledge, threatened with litigation over related patents speaks volumes. We've been around for 5 years, and we've taken this issue seriously the entire time. Absolutely it speaks volumes on the risk management front. But Microsoft, for instance, pays out rather frequently to settle IP suits, sometimes for reasons only peripherally related to their validity; and I don't think watching what the big boys do counts as due care. What I have said above we thought was common knowledge. There are probably very few Free Software projects that have dealt with this issue as seriously as Xiph.org. That's why I put you to the trouble of commenting; I thought debian-legal needed a little injection of educated opinion from someone with a first-hand clue. Common knowledge seems to fade as rapidly as common sense. One last note: I am still on the board of the Xiph.org Foundation, but Monty [EMAIL PROTECTED] is currently the Executive Director. Tom Rosedale is our current legal counsel, but was not the attorney who did the patent review, nor was he actively involved with us at the time the patent review was done. I hope I haven't put you to any trouble or expense by copying Mr. Rosedale; some people prefer to have their legal counsel copied on such issues when they list contact information on a page like http://www.xiph.org/contact/ . I've added Mr. Montgomery on this follow-up; please drop Mr. Rosedale if it's not necessary for him to be involved. Feel free to continue copying me on the discussion. As a fellow debian developer, I'm quite interested in this issue from both sides. Thank you
Re: MP3 decoder packaged with XMMS
On 7/15/05, Rich Walker [EMAIL PROTECTED] wrote: 2. why was the opinion not to be divulged publically? Whether or not the attorney requests that the opinion not be made public, it tends to be wise to preserve attorney-client privilege at the heart of a matter that may be litigated someday -- especially now that (per Knorr-Bremse) no adverse inference may be drawn from a refusal to disclose the contents of such an opinion during discovery. Cheers, - Michael (IANAL, TINLA)
RE: MP3 decoder packaged with XMMS
There is no cost to Xiph for copying me on these. Jack and Monty are well aware of the legal environment in which they are operating. Please do not feel that it is necessary to remove me from this. Tom Thomas B. Rosedale Browne Rosedale Lanouette LLP 31 St. James Avenue, Suite 850 Boston, MA 02116 [EMAIL PROTECTED] Main: (617) 399-6931 Direct: (617) 399-6935 Fax:(617) 399-6930 This email message and any attachments are confidential and may be attorney-client privileged. If you are not the intended recipient, please notify the sender immediately by telephone or email and destroy all copies of this message and any attachments. ** IRS Circular 230 Notice: To comply with requirements imposed by the Internal Revenue Service, we advise you that any U.S. federal tax advice included in this communication, including any attachments, is not intended or written to be used, and cannot be used, to avoid any U.S. federal tax penalties or to promote, market or recommend to another party any tax related matters addressed herein. -Original Message- From: Michael K. Edwards [mailto:[EMAIL PROTECTED] Sent: Friday, July 15, 2005 9:39 PM To: Jack Moffitt; [EMAIL PROTECTED] Cc: MJ Ray; debian-legal@lists.debian.org; Tom Rosedale; Daniel James; Free Ekanayaka Subject: Re: MP3 decoder packaged with XMMS Thanks very much to Mr. Moffitt for weighing in! On 7/15/05, Jack Moffitt [EMAIL PROTECTED] wrote: Just a quick note on this thread. Time seems to have erased the memory of Thompson going after everyone. 8hz-enc, bladeenc, lame, and many other projects have shut down (from cease and desist letters) or refuse to distribute binaries because the MP3 suite of patents _is_ actively enforced. Try going out and finding unlicensed implementations outside the Free Software and Open Source worlds. That out of the way, I will address the issues raised below. That's entirely consistent with my (much less informed) understanding of the history. It would be very interesting to know whether the statement at http://ballsome.org/index.php/news/100 reflects their present policy, and if so whether it would offer some degree of equitable-estoppel-based safe harbor for distributors who can demonstrate substantial non-infringing uses as a defense against contributory infringement. There's no shame, and potentially much advantage, in providing cross-conversion tools between a genuinely free format and the current market leader. I don't believe there are wavelet transforms in Ogg Vorbis. These are planned for some future incompatible update. Can you point me to a brief but technical summary of some of the Ogg Vorbis codecs? I would be curious to compare them against the MP3 techniques, about which I know at least a little bit. Before we released Ogg Vorbis beta 1, we did indeed hire a patent specializing attorney to go over the MP3 suite of patents. He only thought it necessary to issue a formal opinion on a single one of these patents. We were advised by him, and other attorney's, that the specifics of this opinion could not be divulged publically. Since that time (around 2000,2001 I believe), I believe several companies have also had lawyers look over this issue. RedHat ships Ogg Vorbis, and they are obviously aware of these patent problems due to their removal of MP3 related software, so I assume they made this decision based on sound legal advice. I don't believe anyone is going to publically share their findings any more than we have for the same reasons our lawyer original gave. That's understandable. Any chance you could at least identify which patent warranted a formal opinion? New patents come up all the time. No one can afford to keep track of them all, or to have attorney's issue legal opinions on anything related. We have done informal, but educated, analysis on many patents that others have brought to our attention, and never found anything worth troubling a lawyer over. Also, we originally intended the patent-free part of our software, so we based many algorithms on old, widely published results, and avoided many methods that would lead to patent trouble. Can you enlarge at all on your approach to duty of due care? I have only recently run across Knorr-Bremse and am ignorant of how this works in practice when the patents are flying thick and fast. Many large corporations ship Ogg Vorbis with their products, including Microsoft, RealNetworks, EA Games, and many more. There are plenty of billion dollar companies to go after for infringement, should infringement actually be occuring due to Ogg Vorbis. The fact the none of these companies has been, to anyone's knowledge, threatened with litigation over related patents speaks volumes. We've been around for 5 years, and we've taken this issue seriously the entire time. Absolutely it speaks volumes on the risk management front. But Microsoft, for instance, pays out
Re: MP3 decoder packaged with XMMS
On 7/15/05, Michael K. Edwards [EMAIL PROTECTED] wrote: Can you point me to a brief but technical summary of some of the Ogg Vorbis codecs? I would be curious to compare them against the MP3 techniques, about which I know at least a little bit. I am _not_ trying to create trouble here; anything I can figure out in a couple hours of Googling is probably already on your (and your potential opponents') radar. If anything, this illustrates how difficult it can be to sustain work in this space without documenting the things you have done that you think are original in the form of patent applications, so you have something to bring to the table when it's time to negotiate an industry standard and form a patent pool. So I started by reading the Vorbis I spec, and it looks to me (on a very quick reading, IANAL, TINLA, little green men squeezed this through a pinhole in my tinfoil hat) like your decoder at least is clean WRT Fraunhofer -- at the risk of pushing the possibility of patent infringement onto the data stream itself. It's a bit like selling silicon which doesn't become patent-infringing until the firmware is loaded -- which is a perfectly good business strategy, followed by many silicon and board-level vendors in A/V space. Specifically, putting the codebooks in the header is clever, and I'm guessing that Floor 1 gets you out of the trouble that Floor 0 might have had any patent that specifies the Bark scale explicitly. There are always Lucent's patents to worry about (#5790759, #5285498, EP1160770, ... -- I can't believe they let this kind of crap through the system), and you might want to scan the rest of http://gauss.ffii.org/Search/All/IPC/G10L19/02 (maybe even all of bloody G10L19), but I'm probably teaching my grandmother to suck eggs. (If I were designing the codebook format, I might go for stratified trees with room for a heap index so that I could do stabbing queries and bulk insertion efficiently -- but that's really for streaming applications, and matters more when you have hardware on the back end that can only handle a minimal interlock during partial codebook updates. Agile codebook switching might also help compete with G.729E and modern equivalents. Xiph.org is welcome to reduce that idea to practice and patent it, doing whatever they like with the economic rights, as long as I am properly credited as co-inventor. :-) Note that K. Brandenburg, co-author of the 1992 paper you cite as the source of the MDCT, is almost certainly the same Karlheinz Brandenburg who filed #5040217 (assigned to ATT Bell Labs, now presumably held by Lucent as well). A forward citation search for that patent number might be in order; you might particularly be interested in #6,704,705 (assigned to Nortel). By the way, where did you get the numbers in floor1_inverse_dB_table? If that's an important part of the psycho-acoustic magic, its provenance needs documenting, or it could get ugly in a court of fact when an expert witness lies with numbers. The general public can't tell what the significance of the difference between two exponential-ish curves may be, and you don't have the say-so of a patent examiner (for what that's worth) that your methodology does or doesn't differ in some way from the prior art as of date X. That's about all I can glean from the Vorbis I spec without long, tedious grinding through the patent databases, which I'm not qualified to do anyway. Now, is there any documentation about how the encoder works? How do you go about tracking whose chocolate gets into your peanut butter as people refine the encoding techniques? Cheers, - Michael (IANAL, TINLA, I know jack about patents except what I learned when filing one -- totally unrelated to audio -- with the help of a patent agent (now attorney) whom I respect a great deal.)
Re: MP3 decoder packaged with XMMS
I wrote: By the way, where did you get the numbers in floor1_inverse_dB_table? If that's an important part of the psycho-acoustic magic, its provenance needs documenting, or it could get ugly in a court of fact when an expert witness lies with numbers. The general public can't tell what the significance of the difference between two exponential-ish curves may be, and you don't have the say-so of a patent examiner (for what that's worth) that your methodology does or doesn't differ in some way from the prior art as of date X. Nevermind. It's a pure exponential: http://trac.xiph.org/cgi-bin/trac.cgi/ticket/323 . Cheers, - Michael
Re: MP3 decoder packaged with XMMS
On Fri, Jul 15, 2005 at 06:20:14PM -0600, Jack Moffitt wrote: I have copied the Executive Contact and the Legal Counsel for Xiph.org on this message. Please drop them on follow-ups that are not relevant to Ogg/Vorbis. Mr. Rosedale and Mr. Moffitt: the topic of MP3 patents arose on debian-legal (thread at http://lists.debian.org/debian-legal/2005/07/msg00081.html ) and we could all use some competent advice. Just a quick note on this thread. Time seems to have erased the memory of Thompson going after everyone. 8hz-enc, Encoder, bladeenc, encoder... lame, encoder. and many other projects have shut down (from cease and desist letters) Which do you have in mind? We're certainly all well aware of the patents that are being enforced against mp3 encoders, and Debian does not ship any mp3 encoders. This is also certainly a factor in considering which media formats should be given *preference* within Debian. However, or refuse to distribute binaries because the MP3 suite of patents _is_ actively enforced. Try going out and finding unlicensed implementations outside the Free Software and Open Source worlds. That out of the way, I will address the issues raised below. AFAIK there is no public evidence that Red Hat's (which is who I assume you're principally referring to) decision not to ship mp3-playing software is grounded in concerns about actively enforced patents. I'm actually not aware of *any* CD's over mp3 decoding/playing that have actually stuck; and while I appreciate the principled stances various groups have taken in publically rejecting mp3, I don't think it furthers Debian's goals for us to do the same in the absence of some concrete support for the claim that mp3 *players* are patent-encumbered. Cheers, -- Steve Langasek postmodern programmer signature.asc Description: Digital signature
Re: MP3 decoder packaged with XMMS
On 7/12/05, Dan Ravicher [EMAIL PROTECTED] wrote: Mr. Ravicher's public statements on legal matters appear to be largely conformable to the law as I understand it (IANAL), with the exception of his repetition of the canard that it is the knowledge of the particular patent number infringed by a product that puts you at risk of triple damages. In reality, willful ignorance is no more and no less willful than looking up the patent numbers on the packaging and assessing the scope of patent claims yourself. You are completely wrong on this point. Willful infringement under patent law requires the infringer to have had actual knowledge of a patent. Without actual knowledge, one cannot be found to have infringed a patent willfully. If you point me to authority you believe suggests otherwise I would be happy to address it. As I said, no more and no less. A finding of willful infringement usually reflects continued use and/or sale of infringing products, after receiving notice from the patent holder, without a reasonable basis for belief that the patent is invalid or inapplicable. Actual knowledge doesn't strictly require notice from the patent holder, but as far as I know courts don't take seriously random press releases saying all 'one-click' e-commerce transactions (use of the Linux support for FAT32, etc.) requires a patent license, with or without the patent number. Actual knowledge is a finding of fact governed by a well understood corpus of law that doesn't smile on sticking your fingers in your ears and shouting la la la I can't hear you la la la. This is not to say that there are no subtleties, or that the corpus of law has been changeless. Depending on the circumstances, there have been times when consulting competent counsel, at a point when it could reasonably be inferred that you knew you had a problem, was a bit of a Catch-22, since a refusal to provide the resulting opinion during discovery could be held against you; but that's not the case under current law. (And in any case, a failure to consult competent counsel at the appropriate juncture was, and is, almost equally prejudicial.) For the latest word (AFAIK, IANAL, TINLA) on the subject from the Federal Circuit en banc, I recommend Knorr-Bremse v. Dana, http://caselaw.lp.findlaw.com/data2/circs/Fed/011357v2.html . This ruling reversed the district court's finding of willful infringement on very precise grounds: quote The district court also considered Haldex's invocation of the attorney-client privilege in order to withhold its opinions of counsel, and Dana's failure to obtain an independent legal opinion despite the warning and notice of infringement. The appellants argue that but for the adverse inference of unfavorable opinions drawn from these actions, the finding of willfulness of infringement is not supported. Knorr-Bremse responds that willful infringement is well supported by the remaining findings. Because elimination of the adverse inference as drawn by the district court is a material change in the totality of the circumstances, a fresh weighing of the evidence is required to determine whether the defendants committed willful infringement. This determination is the primary responsibility and authority of the district court. We therefore vacate the finding of willful infringement and remand for redetermination of the issue. /quote So the district court was advised, contrary to prior precedent, not to penetrate attorney-client privilege and infer that Haldex would have presented pre-trial opinion of counsel if it were favorable to their case. But in all other respects the Read v. Portec standard for willful infringement was retained: quote We took this case en banc to review this precedent [i. e., the progression from Underwater Devices to Kloster Speedsteel to Fromson in the previous paragraph -- MKE]. While judicial departure from stare decisis always requires special justification, Arizona v. Rumsey, 467 U.S. 203, 212 (1984), the conceptual underpinnings of this precedent, see id., have significantly diminished in force. The adverse inference that an opinion was or would have been unfavorable, flowing from the infringer's failure to obtain or produce an exculpatory opinion of counsel, is no longer warranted. Precedent authorizing such inference is overruled. /quote But note that, like certain other, more senior, FSF associates, he has his own clever way of turning FUD about IP law into revenues. Read more at http://www.computeractive.co.uk/vnunet/analysis/2132110/linux-patently-opportunity and http://www.forbes.com/home/enterprisetech/2004/08/02/cz_dl_0802linux.html . Yes, prior to forming SFLC with Professor Moglen, I represented some clients for fee. I do not do so any longer. However, having said that, I dispute that I have ever spread FUD. In fact, I have helped minimize it. The matter you cite is one where I quantified the previously indeterminable risk patents
Re: MP3 decoder packaged with XMMS
Daniel James [EMAIL PROTECTED] wrote: [...] I also find it hard to believe that the Xiph.org developers would have put many years of work into the Ogg codecs (Vorbis, Theora etc) on the basis of mere FUD. Well, Vorbis has taken advantage of open development to produce a tighter encoding. Also, Vorbis is extensible and Vorbis II plans wavelet transform instead of trig function transform, which became popular later but is more appropriate for some sounds. Decoding Vorbis is computationally simpler because it skips a stage needed to decode MP3 (fast processors are expensive, memory is cheaper) which also makes it attractive to some. Finally, I think the attention from patent-holders over MP3 encoding and format (not decoding) was the catalyst. 1. http://www.xiph.org/ogg/vorbis/doc/Vorbis_I_spec.html#id4755883 2. http://www.tnl.net/who/bibliography/vorbis/ -- MJR/slef My Opinion Only: see http://people.debian.org/~mjr/ Please follow http://www.uk.debian.org/MailingLists/#codeofconduct -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: MP3 decoder packaged with XMMS
* Daniel James: Hi Florian, There are more recent cases which have also been enforced against embedded devices containing MP3 decoders. I couldn't find anything with a quick search on Google - any keywords I should try? This is mostly a European issue, it seems: http://www.heise.de/newsticker/meldung/54440 The company is called Sisvel: http://www.sisvel.com/licensing_programs.asp IIRC, I looked at the patents, and they were hard to enforce against mere software distributors, but I could be wrong. -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: MP3 decoder packaged with XMMS
Michael K. Edwards [EMAIL PROTECTED] wrote: Even so, Mr. Ravicher appears to be on the saner end of the range of FSF associates. [...] Isn't defaming a lawyer rather a stupid tactic for someone in the US? For those wondering what part of the sanity range patenter Michael K Edwards inhabits, he mentioned during the Firefox trademark thread that he'd let his sane-ness lapse. ;-) 1. http://lists.debian.org/debian-legal/2005/02/msg00146.html -- MJR/slef My Opinion Only: see http://people.debian.org/~mjr/ Please follow http://www.uk.debian.org/MailingLists/#codeofconduct -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: MP3 decoder packaged with XMMS
On 13 Jul 2005 07:50:44 GMT, MJ Ray [EMAIL PROTECTED] wrote: Michael K. Edwards [EMAIL PROTECTED] wrote: Even so, Mr. Ravicher appears to be on the saner end of the range of FSF associates. [...] Isn't defaming a lawyer rather a stupid tactic for someone in the US? I have no wish to _defame_ a lawyer (or anyone else for that matter), and have tried to be careful to distinguish between things that I know personally (very little when it comes to the FSF) and conclusions that I have drawn from public evidence (which I try to flag as such and cite completely and accurately). Much of what I write reflects only how it appears to me, and I try to disclaim authority accordingly. While no public critic is safe from accusations of defamation, slander, libel, and so forth -- certainly not when it comes to lawyers in the US, but the same is true to some degree of public figures generally in the UK and political figures in most places, and US lawyers shade into both categories -- proving them is supposed to require a demonstration of both malicious intent and actual knowledge of falsehood. I try to avoid both of these criteria in both letter and spirit, not so much out of fear of the law as because I am aware that anything I send to a Debian mailing list will be Google-able more or less from now to the heat death of the Universe. For those wondering what part of the sanity range patenter Michael K Edwards inhabits, he mentioned during the Firefox trademark thread that he'd let his sane-ness lapse. ;-) My association with the name SANE.net always was something between an inside joke and big lie theory ... :-) Cheers, - Michael
Re: MP3 decoder packaged with XMMS
* Daniel James: The more I look into this issue, the more I am convinced that we have to promote the free formats better. This is certainly true, I'm not too happy with Debian's policy on MP3 and its patents, either. But keep in mind that many of those patents are fairly generic and probably affect Ogg Vorbis, too. -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: MP3 decoder packaged with XMMS
Hi Dan, And, it is possible to receive a patent license that does not cause a failure to comply with Section 7. The GPL Section 7 says For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, ... Therefore, patent licenses which allow royalty-free redistribution are fine and do not trigger Section 7. Unfortunately, in the case of MP3, I don't think a royalty-free redistribution licence is on offer. There is a flat-fee license available, but I bet it doesn't allow redistribution. Otherwise the patent holders would be able to sell very few licences. Cheers! Daniel -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: MP3 decoder packaged with XMMS
Hi Florian, This is mostly a European issue, it seems: http://www.heise.de/newsticker/meldung/54440 The company is called Sisvel: http://www.sisvel.com/licensing_programs.asp IIRC, I looked at the patents, and they were hard to enforce against mere software distributors, but I could be wrong. Unfortunately they specifically mention computers, soundcards and software here: http://www.audiompeg.com/ The more I look into this issue, the more I am convinced that we have to promote the free formats better. Cheers! Daniel -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: MP3 decoder packaged with XMMS
Hi Florian, keep in mind that many of those patents are fairly generic and probably affect Ogg Vorbis, too. I think the Xiph developers have been very careful not to use the techniques of MP3 for this very reason. However, I don't think any developer is immune from patent intimidation, so it's something we have to be vigilant about. Cheers! Daniel -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: MP3 decoder packaged with XMMS
Free-software-MP3 enthusiasts who believe in the protective power of ignorance, and who are not already sticking their fingers in their ears and shouting la la la, may wish to do so before reading further. (They may also wish to start work on their affidavit demonstrating that their local ISP prevents them from Googling sisvel MP3 for themselves.) At least some MP3 player chipset vendors seem to think their customers need patent licenses from both Sisvel (or its US subsidiary Audio MPEG) and Thomson (sole licensor for Fraunhofer MP3 patents; see below). (Reportage at http://www.electronics.globalsources.com/gsol/I/Flash-MP3/a/900062166.htm ; note that it misreports some Microsoft patents relating to WMA DRM as MP3 patents.) Audio MPEG's website claims traction on software implementations and (!) computers generally. But they seem to be the licensing agency for non-DVD-decoding-as-such use of audio patents that Philips filed in the course of developing their DVD silicon (see http://www.licensing.philips.com/licensees/conditions/dvd/documents1008.html ); and certain vitally interested parties don't seem to worry about those patents when no MPEG-specific silicon is involved. For instance, judging from the literature that came with my iPod mini (a spiff from an employer, unsuitable for resale because of its non-Apple-approved-warranty-voiding engraving; don't blame me for SUPPORTING the EVIL PROPRIETARY audio DRM, mmkay?), Apple doesn't think it needs licenses for Philips patents for its MP3 decode functionality (implemented in software on a weird dual ARM core chip, according to http://www.arm.com/markets/mobile_solutions/armpp/7518.html ). They have licensed the Fraunhofer / Thomson suite, although it is worth noting that iTunes (bundled with the iPod, and also available to all Mac users as a free-as-in-beer download) has MP3 encoding capabilities and Apple may have done an all-you-can-eat deal with them covering both encoding and decoding. Starting from the URL that Apple supplies and clicking a couple of times, we get to http://www.iis.fraunhofer.de/amm/legal/index.html (stating that Thomson is Fraunhofer's sole licensor) and thence to www.mp3licensing.com. Better not click http://www.mp3licensing.com/patents/index.html if you don't want to know the patent numbers involved, and you certainly had better not (for example) Google patent 5,924,060, click through to patft.uspto.gov, read patentee Brandenburg's disclosure and claims, and conclude (as I do, but IANAL and all that) that to get something both non-obvious and actually reduced to practice by the inventor you need to intersect at least claims 1, 3, 6, and 7. All the patent's claims are dependent on claim 1, which is (as usual with this sort of patent) so broad as to be obviously invalid by itself as a description of the scope of the patent. The claim that reflects the principal substance of the invention is number 7. IMHO efficient psycho-acoustic quantization was potentially the sort of invention suitable for patenting in 1987, depending on your perspective on the purpose of patent law. Granting that for the moment, the fun is in determining which of the other claims are essential to the invention. If I were to consult my personal sense of what rises to a proper level of originality, in ignorance of the details of the prior art, I would say that 2, 4, 5, and 8 are sufficiently routine that the patent can't be dodged by using some alternative to them. But the meat of the patent is in the actual reduction to practice (i. e., a concrete quantization scheme specific to the human perception of music, of which these claims are merely implementation details) of the psycho-acoustic premise in claim 7, without which there is no invention to speak of. And until you specify both the entropy encoder (3) and the DCT or its cousin (6), there's nothing to reduce to practice. IANAL, least of all a qualified US patent attorney, but that's kind of how this first, rough-cut, things that are obvious to one skilled in the art stage of the infringement analysis works as I understand it. YMMV; and even if the above is correct as far as it goes, a court under the jurisdiction of the Federal Circuit might well reach different opinions about which claims are essential to the invention and which are not. For one thing, there may be prior art that did psycho-acoustic quantization using a DCT and entropy encoding (those bits are laws of nature, and in any case already well understood in 1987) but did it less well because they chose alternatives to 2, 4, 5, and 8. Anyway, the alleged infringer is entitled to argue that, to the extent that the plaintiff holds a valid patent, the court should limit its reach (based on its claims, its disclosure, the prior art, and other factors) in some way that causes it to fall short of covering the allegedly infringing product. This may or may not involve demonstrating that this product is itself inventive to within a
Re: MP3 decoder packaged with XMMS
On 7/12/05, Dan Ravicher [EMAIL PROTECTED] wrote: [quoting, I think, Daniel James] That seems a little 'head in the sand'. The MP3 patent holders have a truckload of patents on the format in many countries, going back to the 1980s. I don't see how a business could distribute free software on the basis that if it came to a lawsuit for patent infringement, it could just deny that patent law applied. A lawsuit would destroy my start-up company, even if we won in court. Patentees only win patent infringement cases 1/3 of the time, so it is not unreasonable to feel confident that a dispute would result favorably for the accused infringer. Further, whether your company or any other defendant could afford to defend yourself if sued has no impact on whether a condition has been placed on you. That's your financial situation, not a condition placed on you by a court or yourself. Mr. James - If you were inclined to place any weight on this sort of statistic, you might do well to read Knorr-Bremse v. Dana, http://caselaw.lp.findlaw.com/data2/circs/Fed/011357v2.html , paying particular attention to this paragraph: quote Fundamental to determination of willful infringement is the duty to act in accordance with law. Reinforcement of this duty was a foundation of the formation of the Federal Circuit court, at a time when widespread disregard of patent rights was undermining the national innovation incentive. See Advisory Committee On Industrial Innovation Final Report, Dep't of Commerce (Sep. 1979). Thus in Underwater Devices, Inc. v. Morrison-Knudsen Co., 717 F.2d 1380 (Fed. Cir. 1983) the court stressed the legal obligation to respect valid patent rights. The court's opinion quoted the infringer's attorney who, without obtaining review by patent counsel of the patents at issue, advised the client to continue to refuse to even discuss the payment of a royalty. Id. at 1385. The attorney advised that [c]ourts, in recent years, have -- in patent infringement cases -- found the patents claimed to be infringed upon invalid in approximately 80% of the cases, and that for this reason the patentee would probably not risk filing suit. Id. On this record of flagrant disregard of presumptively valid patents without analysis, 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, including the duty to seek and obtain competent legal advice from counsel before the initiation of any possible infringing activity. Id. at 1389-90. /quote The Knorr-Bremse case revised one specific aspect of the previous willful infringement standard (removing a Catch-22 involving attorney-client privilege), but reliance on broad-brush statistics is still clearly not advisable. Cheers, - Michael (IANAL, TINLA)
Re: MP3 decoder packaged with XMMS
I believe we have now gone way off topic from the original post, which was about whether the existence of a patent that someone (whether the patent holder or anyone else) believes may cover something similar to a GPL'd free software product triggers GPL Section 7 and, thus, forbids the redistribution of that product. I have explained how it does not. I will respond to your points offline. Michael K. Edwards wrote: On 7/12/05, Dan Ravicher [EMAIL PROTECTED] wrote: Mr. Ravicher's public statements on legal matters appear to be largely conformable to the law as I understand it (IANAL), with the exception of his repetition of the canard that it is the knowledge of the particular patent number infringed by a product that puts you at risk of triple damages. In reality, willful ignorance is no more and no less willful than looking up the patent numbers on the packaging and assessing the scope of patent claims yourself. You are completely wrong on this point. Willful infringement under patent law requires the infringer to have had actual knowledge of a patent. Without actual knowledge, one cannot be found to have infringed a patent willfully. If you point me to authority you believe suggests otherwise I would be happy to address it. As I said, no more and no less. A finding of willful infringement usually reflects continued use and/or sale of infringing products, after receiving notice from the patent holder, without a reasonable basis for belief that the patent is invalid or inapplicable. Actual knowledge doesn't strictly require notice from the patent holder, but as far as I know courts don't take seriously random press releases saying all 'one-click' e-commerce transactions (use of the Linux support for FAT32, etc.) requires a patent license, with or without the patent number. Actual knowledge is a finding of fact governed by a well understood corpus of law that doesn't smile on sticking your fingers in your ears and shouting la la la I can't hear you la la la. This is not to say that there are no subtleties, or that the corpus of law has been changeless. Depending on the circumstances, there have been times when consulting competent counsel, at a point when it could reasonably be inferred that you knew you had a problem, was a bit of a Catch-22, since a refusal to provide the resulting opinion during discovery could be held against you; but that's not the case under current law. (And in any case, a failure to consult competent counsel at the appropriate juncture was, and is, almost equally prejudicial.) For the latest word (AFAIK, IANAL, TINLA) on the subject from the Federal Circuit en banc, I recommend Knorr-Bremse v. Dana, http://caselaw.lp.findlaw.com/data2/circs/Fed/011357v2.html . This ruling reversed the district court's finding of willful infringement on very precise grounds: quote The district court also considered Haldex's invocation of the attorney-client privilege in order to withhold its opinions of counsel, and Dana's failure to obtain an independent legal opinion despite the warning and notice of infringement. The appellants argue that but for the adverse inference of unfavorable opinions drawn from these actions, the finding of willfulness of infringement is not supported. Knorr-Bremse responds that willful infringement is well supported by the remaining findings. Because elimination of the adverse inference as drawn by the district court is a material change in the totality of the circumstances, a fresh weighing of the evidence is required to determine whether the defendants committed willful infringement. This determination is the primary responsibility and authority of the district court. We therefore vacate the finding of willful infringement and remand for redetermination of the issue. /quote So the district court was advised, contrary to prior precedent, not to penetrate attorney-client privilege and infer that Haldex would have presented pre-trial opinion of counsel if it were favorable to their case. But in all other respects the Read v. Portec standard for willful infringement was retained: quote We took this case en banc to review this precedent [i. e., the progression from Underwater Devices to Kloster Speedsteel to Fromson in the previous paragraph -- MKE]. While judicial departure from stare decisis always requires special justification, Arizona v. Rumsey, 467 U.S. 203, 212 (1984), the conceptual underpinnings of this precedent, see id., have significantly diminished in force. The adverse inference that an opinion was or would have been unfavorable, flowing from the infringer's failure to obtain or produce an exculpatory opinion of counsel, is no longer warranted. Precedent authorizing such inference is overruled. /quote But note that, like certain other, more senior, FSF associates, he has his own clever way of turning FUD about IP law into revenues. Read more at
Re: MP3 decoder packaged with XMMS
On 7/13/05, Michael K. Edwards [EMAIL PROTECTED] wrote: For the latest word (AFAIK, IANAL, TINLA) on the subject from the Federal Circuit en banc, I recommend Knorr-Bremse v. Dana, http://caselaw.lp.findlaw.com/data2/circs/Fed/011357v2.html . This ruling reversed the district court's finding of willful infringement on very precise grounds: Stupid me. Not reversed. Vacated and remanded. Note also that the DC didn't err in light of the applicable law at the time, it's just that the FC decided en banc that the rules of the game needed revision due to changes in the conceptual underpinnings of the precedents for adverse inference. IANAL, but I would guess that the only remotely likely prospect of further weakening the due care standard in the foreseeable future would be to argue before the Supremes that, if it's worth breaching stare decisis on these grounds, it would be better to go even farther as argued in Judge Dyk's dissent. Personally, I would not want my financial well-being to hinge on such a test case. Oh, and while we're on the topic of the Federal Circuit and patents that should never have been granted -- does anyone know whether the district court ever ruled on remand in Amazon.com v. Barnesandnoble.com? Looks to me like Amazon settled out of court, after losing their preliminary injunction on appeal, to avoid having the 1-Click patent invalidated altogether. But it's hard to tell without paying for a full PACER search, as the press lost interest and the Western District of Washington doesn't exactly make its files easy to search for free. Cheers, - Michael
Re: MP3 decoder packaged with XMMS
Hi Michael, 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. 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. Cheers! Daniel -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: MP3 decoder packaged with XMMS
On 7/13/05, Daniel James [EMAIL PROTECTED] 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 infringement. 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 (particularly 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 ( http://www.eff.org/IP/DMCA/US_v_Elcomsoft/20020508_dismiss_deny_order.pdf ) 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. Cheers, - Michael
Re: MP3 decoder packaged with XMMS
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. This is not a condition[] imposed on you ... that contradict[s] the conditions of [the GPL], as per GPL Section 7, because exercising due care to avoid infringing a patent and redistributing software royalty free are not mutually exclusive. The exercise of that duty can only lead to the conclusion that royalty-bearing patents and free software don't mix well. This is true only if the free software infringes a valid royalty-bearing patent. But your point is entirely correct, as the GPL states, any free program is threatened constantly by software patents. Best, --Dan Daniel B. Ravicher Legal Director Software Freedom Law Center 1995 Broadway Fl 17 New York, NY 10023-5882 212-461-1902 direct 212-580-0800 main 212-580-0898 fax [EMAIL PROTECTED] www.softwarefreedom.org -- This message is intended only for the designated recipient(s). It may contain confidential or proprietary information and may be subject to the attorney-client privilege or other confidentiality protections. If you are not a designated recipient, you may not review, copy or distribute this message. If you receive this in error, please notify the sender by reply e-mail and delete this message. Thank you. -- -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: MP3 decoder packaged with XMMS
Patentees only win patent infringement cases 1/3 of the time, so it is not unreasonable to feel confident that a dispute would result favorably for the accused infringer. Further, whether your company or any other defendant could afford to defend yourself if sued has no impact on whether a condition has been placed on you. That's your financial situation, not a condition placed on you by a court or yourself. If you were inclined to place any weight on this sort of statistic, That statistic comes from, amongst other sources, Patstats, U.S. Patent Litigation Statistics, University of Houston Law Center, available at http://www.patstats.org/2003.html, which shows that, in 2003, patents in litigation were found invalid 58% of the time and not infringed 77% of the time. For a patentee to win, the patent must be held both valid and infringed. Since both issues are resolved in many cases, you can not consider that of the 44% of patents held valid they were then found infringed 23% of the time (that would give you too low of a number). Roughly the result in patent litigation is that patentees win about 1/3 of the time. Of course, this also differs by technology, with pharmaceutical patents being a little stronger than others, but it is generally true. If you have evidence to the contrary, please identify it. Best, --Dan Daniel B. Ravicher Legal Director Software Freedom Law Center 1995 Broadway Fl 17 New York, NY 10023-5882 212-461-1902 direct 212-580-0800 main 212-580-0898 fax [EMAIL PROTECTED] www.softwarefreedom.org -- This message is intended only for the designated recipient(s). It may contain confidential or proprietary information and may be subject to the attorney-client privilege or other confidentiality protections. If you are not a designated recipient, you may not review, copy or distribute this message. If you receive this in error, please notify the sender by reply e-mail and delete this message. Thank you. -- -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: MP3 decoder packaged with XMMS
On 7/13/05, Dan Ravicher [EMAIL PROTECTED] wrote: Patentees only win patent infringement cases 1/3 of the time, so it is not unreasonable to feel confident that a dispute would result favorably for the accused infringer. Further, whether your company or any other defendant could afford to defend yourself if sued has no impact on whether a condition has been placed on you. That's your financial situation, not a condition placed on you by a court or yourself. If you were inclined to place any weight on this sort of statistic, That statistic comes from ... Of course it comes from somewhere reasonable; I have stipulated that you're on the saner end of the FSF spectrum. But it's still no basis for a claim that you have, or anyone else has, exercised due care with regard to any particular patent, let alone a suite of dozens that has withstood the kind of scrutiny that Fraunhofer's has. The Federal Circuit, en banc, characterized one defendant's reliance on a similar statistic (offered by their counsel and apparently relied on in good faith to the extent that that means anything) as flagrant disregard of presumptively valid patents without analysis -- and I can find no better words for it. Cheers, - Michael (I haven't read the Underwater Devices case, only citations to it in later cases; so I'm not entirely sure which party was the arrant infringer. Doesn't matter, except that it contributes to my already tortured syntax.)
Re: MP3 decoder packaged with XMMS
Hi Dan, This is not a condition[] imposed on you ... that contradict[s] the conditions of [the GPL], as per GPL Section 7, because exercising due care to avoid infringing a patent and redistributing software royalty free are not mutually exclusive. They might be if we choose to ship a GPL'd package with MP3 support, as Debian does. You can't exercise the due care and not know about the royalty-bearing patents. Ignorance isn't a defence, and neither is denial. As a short term solution, we will make our own package of XMMS without MP3 or other proprietary codec support. It's inconvenient for users, but I'd rather we did the right thing. Cheers! Daniel -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: MP3 decoder packaged with XMMS
On Tue, 12 Jul 2005, Diego Biurrun wrote: On Tue, Jul 12, 2005 at 02:38:29AM -0700, Steve Langasek wrote: Debian policy governs the technical details of package creation. This is a matter that's out of scope of the policy document; my comments reflect the de facto policy of the ftp team as I understand it. Maybe it's time to create some sort of patent/ftp/XXX policy then. Feel free to propose one; however you should attempt to discover first what the effective policy is that the ftpmasters are imposing upon the archive. Otherwise all you'll do is continuing to tilt against windmills. The core of this thread revolves around the problem that Debian's stance towards patents is unclear and inconsistent. Some programs are jugded impossible to package due to patent problems, while others aren't. You can package whatever you want. The metric that is applied is applied at the level of the ftpmaster, where they determine if the risk of being sued for a patent violation is unreasonable for Debian to undertake. This determines what Debian *distributes*, as it has for quite some time. The stance is fairly straightfowarward. If we're aware that the work is covered by patents, and we know that the patent is being actively prosecuted, it's likely that the work is not albe to be distributed in Debian. However, if the work is only alledged to be covered by patents which no one has heard about and it meeds the other parameters of the ftpmasters, the package can enter the archive. This is further complicated by the fact that some MP3 encoders and multimedia applications are packaged while others are not, even though they do the same things and thus fall under the scope of the same patents. Which packages exactly are being discussed here? [While many would prefer not to discuss details of patents, I'd at least appreciate being pointed to specific packages and ideally patent numbers concerning them.] Don Armstrong -- Debian's not really about the users or the software at all. It's a large flame-generating engine that the cabal uses to heat their coffee -- Andrew Suffield (#debian-devel Fri, 14 Feb 2003 14:34 -0500) http://www.donarmstrong.com http://rzlab.ucr.edu -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: MP3 decoder packaged with XMMS
Michael K. Edwards wrote: On 13 Jul 2005 07:50:44 GMT, MJ Ray [EMAIL PROTECTED] wrote: Michael K. Edwards [EMAIL PROTECTED] wrote: Even so, Mr. Ravicher appears to be on the saner end of the range of FSF associates. [...] Isn't defaming a lawyer rather a stupid tactic for someone in the US? I have no wish to _defame_ a lawyer (or anyone else for that matter), and have tried to be careful to distinguish between things that I know personally (very little when it comes to the FSF) and conclusions that I have drawn from public evidence (which I try to flag as such and cite completely and accurately). Much of what I write reflects only how it appears to me, and I try to disclaim authority accordingly. How do you classify your knowledge that some of them smoke crack? -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: MP3 decoder packaged with XMMS
On Tue, Jul 12, 2005 at 09:10:42PM -0700, Steve Langasek wrote: On Tue, Jul 12, 2005 at 10:25:03PM -0500, Christofer C. Bell wrote: Because the current illegitmate patent regime is the law. No, it is not. Portfolios of invalid patents hold their value by means of FUD and financial might, not law. First you say illegitimate patent regime, then you say invalid patents. Do you mean that you consider all patents invalid, because you consider the entire patent process invalid, or do you consider only the obviously ridiculous patents invalid? Or just software patents? --Adam -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: MP3 decoder packaged with XMMS
On 7/13/05, Pedro A.D.Rezende [EMAIL PROTECTED] wrote: How do you classify your knowledge that some of them smoke crack? Hyperbolic (and obviously non-literal) ridicule, not of the persons involved but of the premise (wholly unfounded in law and legal history) that the GPL is a creature of anything other than contract law. But you are quite right that I shouldn't be using that phrase even as a reference to previous debian-legal posts (which is what I intended in that postscript), not because any reasonable person would mistake it for an accusation of drug use, but because a couple of people (Bernard Link and Raul Miller, IIRC; http://lists.debian.org/debian-legal/2005/06/msg00208.html ) said it made them uncomfortable. I don't wish for my language (as opposed to what I have to say) to make people uncomfortable. Pity, though; the other Google results for crack-smoking GPL are hilarious. crack-smoking Linus Torvalds is even better. Cheers, - Michael
Re: MP3 decoder packaged with XMMS
On 7/12/05, Daniel James [EMAIL PROTECTED] wrote: According to reports from free software developers, it's difficult to create MP3 encoders without using technologies described by the patents. It's difficult to create JPEG image rendering software without using technologies described by MP3 patents. This does not mean that the rendering of JPEG images is restricted by those patents. More generally, described by a patent does not mean patented. -- Raul
Re: MP3 decoder packaged with XMMS
On 7/13/05, Raul Miller [EMAIL PROTECTED] wrote: It's difficult to create JPEG image rendering software without using technologies described by MP3 patents. So do tell us where MP3 patents fit -- what patents, which claims, and what part of JPEG compression? None of the patents discussed below is part of the Fraunhofer / Thomson or Philips / Sisvel / Audio MPEG suite. Let's start with http://www.w3.org/Graphics/JPEG/AnnexL.html , which was long generally considered an exhaustive list of the patents remotely applicable to JPEG, none of which has been claimed against baseline JFIF compression in fourteen years of commercial use (at least ten of ubiquity). Seven of the ten patents originally listed in Annex L were assigned to IBM. (Note that #4,725,884 is actually an irrelevant patent entitled Optical Metrology; the Gonzales, Mitchell, Pennebaker patent is #4,725,885.) Two were assigned to ATT Bell Labs. The last was originally granted in Japan and assigned to Mitsubishi; its US equivalent is #5,311,177. Subsequent disputes have arisen based on other patents -- see http://www.jpeg.org/newsrel1.html -- but I for one am not impressed. The principal aggressor in current JPEG litigation is the successor to Compression Labs, Inc. (among others) -- now a blatant IP litigation shell company called Forgent Networks, with a textbook pump-and-dump stock swindle attached. (That's my own unqualified judgment; but check out their web site and Google forgent networks stock. See also http://www.aspnetresources.com/blog/forgent_jpeg_saga.aspx and references therein.) IANAL, TINLA, etc. -- and it's also not investment advice. Forgent's suits have been consolidated (perhaps not including a later one against Microsoft) and seem to be headed for a swift death (well, swift as these things go) at the hands of the Honorable Phyllis J. Hamilton of the Northern District of California. (I prophesy that Godwin Gruber LLP is going to regret taking this client.) That litigation is principally about #4,698,672 -- not in the Annex L list -- which a quick review persuades me is a comically trivial tweak to #4,302,775 (expired). There are actually two more patents mentioned in the current edition of Annex L: one assigned to IBM and replacing #4,725,885, plus #4,665,436. I would humbly put the latter in a category with my own patent: part algorithm and part circuit description, clever in its adaptation to painfully tight resource constraints, funded by an incorrigible cowboy operator, impossible to evaluate its applicability to MPEG without litigation. Doubtless, if it had not been permitted to expire for lack of maintenance payment in 1999, it would also be in the portfolio of a similar make-money-fast-with-lawsuits company, as would mine. (While you're at it, check out #5,533,051, which appears to contain the only other reference within Google's reach to that Optical Metrology patent. Not only is it a variant of perpetual motion, the applicant cut and pasted his prior art references from places like Annex L, and the examiner didn't check them. I would not trade places with Mr. Scott A. Rogers for all the tea in China. Did I mention that, given the potential cost of litigating an obviously stupid patent, the USPTO is hard to defend for more reasons than just corporate 0wn3rship?) Cheers, - Michael P. S. See also http://www.faqs.org/faqs/compression-faq/part1/section-7.html .
Re: MP3 decoder packaged with XMMS
On Mon, Jul 11, 2005 at 01:45:24PM +0200, Diego Biurrun wrote: On Mon, Jul 11, 2005 at 03:54:12AM -0700, Steve Langasek wrote: However, the reason Debian continues to include the mp3 decoder library is that this patent, like so many other software patents, does not appear to be actively enforced. This is the standard Debian uses in deciding whether to distribute the software; Red Hat evidently uses a different standard. Is that the standard Debian practise? Is that in the policy somewhere? Debian policy governs the technical details of package creation. This is a matter that's out of scope of the policy document; my comments reflect the de facto policy of the ftp team as I understand it. AFAICT Debian includes many packages that violate software patents, even actively enforced ones. It's simply impossible to avoid. A very prominent example is libts/libdca, where the developers closed the project due to patent threats by DTC Inc.: http://packages.debian.org/stable/libdevel/libdts-dev http://developers.videolan.org/libdca.html DTS Inc. claims that distributing this software is a violation of their patent EP 864 146. At DTS Inc. request, we decided, as a precautionary measure, to provisionally suspend the distribution of libdca while reviewing DTS Inc. claim. This is not an acknowledgement of the validity of the claim. The previous name libdts was changed to libdca as a precautionary measure. So upstream hasn't even decided yet what to think of the patent claim, they've just taken things off-line as a precaution. That's a rather weak precedent for enforcement. Another example from the multimedia area are the patents on MPEG-2/4/H.264 held and actively enforced by the MPEG LA (licensing association) and the many packages in Debian that support MPEG-2/4/H.264 (and all of them support MP3 as well): Do you have any references regarding the enforcement of these patents? -- Steve Langasek postmodern programmer signature.asc Description: Digital signature
Re: MP3 decoder packaged with XMMS
Hi Dan, Quite, but there is the issue of GPL section 7 making this particular library non-free. The patent licence terms for MP3 technology are very clear, even for free software decoders: Section 7 is very clear, if ... conditions are imposed on you (whether by court order, agreement or otherwise) ... Thus, absent a court order barring a particular practice or someone agreeing to not perform a particular practice, Section 7 is not triggered. Section 7 uses the words 'otherwise' and 'for any other reason', so it specifically includes situations other than court orders or agreements. Patent law imposes conditions (and penalties) on businesses even when there is no explicit agreement with the patent holder. Just because a patentee says you need a license does not either (1) make it true That seems a little 'head in the sand'. The MP3 patent holders have a truckload of patents on the format in many countries, going back to the 1980s. I don't see how a business could distribute free software on the basis that if it came to a lawsuit for patent infringement, it could just deny that patent law applied. A lawsuit would destroy my start-up company, even if we won in court. I fail to see what the patent licensing problem to which you refer. It's simply that when code obviously covered by actively enforced patents is bundled with free software, business will have serious reservations about redistributing that free software. The ironic thing about this particular package is that Debian is usually regarded as being stricter on licensing issues, yet it is bundling libraries that other distributions feel they cannot. The most I can see here is a general threat made to the entire world. In the area of multimedia, the MPEG related patents are a particular problem because the formats are de-facto standards - MP3 is just one of these. I am aware of no specific allegation being made against Debian. Sure, but that's probably due to the perception that Debian and free software are non-commercial, and so aren't worth suing. As commercially successful products based on Debian emerge, that might change. Running a business based on free software, I have to consider all the potential threats to that business - and patent enforcement is one of them. It's my intention that we ship only free formats in the base 64 Studio distribution, and if people want to use proprietary, patent-encumbered formats then that will be a (fully legal) 'optional extra'. Cheers! Daniel -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: MP3 decoder packaged with XMMS
On Tue, Jul 12, 2005 at 11:20:45AM +0100, Daniel James wrote: I think the existence of the http://mp3licensing.com/ site shows that it is actively enforced. I think that's a website. Evidence of active enforcement are cease and desist letters, out-of-court settlements, or lawsuits. Ancient history. That happened back in the 90's, and was the catalyst for work to begin on the free software alternatives, such as Ogg Vorbis. See for example: http://www.8hz.com/mp3/ No. That website refers to enforcement of patents on mp3 *encoders*, not on mp3 *de*coders. Please do not conflate the two issues. (Well, I suppose that you can in your own work, but Debian will continue to consider them separately.) -- Steve Langasek postmodern programmer -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: MP3 decoder packaged with XMMS
Hi Steve, These license terms are only an issue if we recognize the validity of the patent. I don't think the law cares whether we personally agree with software patents or not. I'd say that for a business operating in the USA or Europe, the patent system does create very pertinent obligations. - Not for Europe, where software patents are not legal. That's an optimistic view of the current situation in the EU, and while I'm just as encouraged by the recent European Parliament vote, I don't think the software patent machine is just going to crumble away. I think the existence of the http://mp3licensing.com/ site shows that it is actively enforced. I think that's a website. Evidence of active enforcement are cease and desist letters, out-of-court settlements, or lawsuits. Ancient history. That happened back in the 90's, and was the catalyst for work to begin on the free software alternatives, such as Ogg Vorbis. See for example: http://www.8hz.com/mp3/ And apt-cache search mp3 will quickly show that xmms is not the only package in Debian with mp3 decoding support. All the more reason for separating out the libraries. xmms just happened to be the particular package that we were considering. When a business or other organisation wants to redistribute Debian packages, it would be useful to be able to split off the sub-packages with known patent licensing problems. When it's known to be an actual licensing problem, I'm sure Debian will address it. It is a known problem, but it seems that the Debian project has ignored it for the sake of convenience. Cheers! Daniel -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: MP3 decoder packaged with XMMS
Hi Steve, That website refers to enforcement of patents on mp3 *encoders*, not on mp3 *de*coders. Please do not conflate the two issues. I'm afraid I must, as while the royalty rates may be different, the patent issues apply to both encoders and decoders. Debian will continue to consider them separately. It's a completely artificial distinction. Of course the patent holders have a vested interest in seeing the decoders spread as widely as possible, legal or not, in order to further the hegemony of their proprietary format among users. I'm curious as to why Debian would want to support that effort. Cheers! Daniel -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: MP3 decoder packaged with XMMS
Quite, but there is the issue of GPL section 7 making this particular library non-free. The patent licence terms for MP3 technology are very clear, even for free software decoders: Section 7 is very clear, if ... conditions are imposed on you (whether by court order, agreement or otherwise) ... Thus, absent a court order barring a particular practice or someone agreeing to not perform a particular practice, Section 7 is not triggered. Section 7 uses the words 'otherwise' and 'for any other reason', so it specifically includes situations other than court orders or agreements. Patent law imposes conditions (and penalties) on businesses even when there is no explicit agreement with the patent holder. Absolutely false. Patent law imposes no condition on businesses forbidding certain activity until either a court enters an injunction barring such activity or a party itself agrees not to perform such activity. I can understand how the rhetoric (FUD) spread by patent holders may have lead you to believe otherwise, but it is incorrect. Just because a patentee says you need a license does not either (1) make it true That seems a little 'head in the sand'. The MP3 patent holders have a truckload of patents on the format in many countries, going back to the 1980s. I don't see how a business could distribute free software on the basis that if it came to a lawsuit for patent infringement, it could just deny that patent law applied. A lawsuit would destroy my start-up company, even if we won in court. Patentees only win patent infringement cases 1/3 of the time, so it is not unreasonable to feel confident that a dispute would result favorably for the accused infringer. Further, whether your company or any other defendant could afford to defend yourself if sued has no impact on whether a condition has been placed on you. That's your financial situation, not a condition placed on you by a court or yourself. Further, with respect to Debian, both the Software Freedom Law Center and the Public Patent Foundation are ready, willing and able to provide legal services to protect it and the community's rights, should that support be desired. I fail to see what the patent licensing problem to which you refer. It's simply that when code obviously covered by actively enforced patents is bundled with free software, business will have serious reservations about redistributing that free software. The ironic thing about this particular package is that Debian is usually regarded as being stricter on licensing issues, yet it is bundling libraries that other distributions feel they cannot. You give patents _way_ too much credit. There is no such thing as being obviously covered by ... [a] patent. Again, patent holders would like the world to believe such is the case, but it is flatly not true. Proving infringement is an extremely difficult process and not one capable of being obvious until a court has interpreted what the precise scope of a patent is. I'm not sure what businesses you are referring to when you say there will be serious reservations about redistributing free software. Many businesses are distributing free software today with the correct understanding that although patents are indeed a threat to all software, not just free software, they do no pose an overwhelming threat that cannot be managed. The most I can see here is a general threat made to the entire world. In the area of multimedia, the MPEG related patents are a particular problem because the formats are de-facto standards - MP3 is just one of these. What evidence, and not just patentee statements or general fear and mis belief within the community, do you have that they have valid patents that cover the entirety of the standard? I would be happy to analyze any such evidence for you. I am aware of no specific allegation being made against Debian. Sure, but that's probably due to the perception that Debian and free software are non-commercial, and so aren't worth suing. As commercially successful products based on Debian emerge, that might change. I find it unreasonable for any sophisticated patent holder to believe free software is non-commercial. Although Debian may be at this point, much of what is Debian is distributed by others in a very commercial fashion under other brand names. Running a business based on free software, I have to consider all the potential threats to that business - and patent enforcement is one of them. It's my intention that we ship only free formats in the base 64 Studio distribution, and if people want to use proprietary, patent-encumbered formats then that will be a (fully legal) 'optional extra'. If you believe that something is patent-encumbered just because some patentee says they have a patent that covers a format, you are giving the patent way too much credit and I fear you will soon be unable to distribute any format. But, if such is your
Re: MP3 decoder packaged with XMMS
Steve Langasek wrote: Another example from the multimedia area are the patents on MPEG-2/4/H.264 held and actively enforced by the MPEG LA (licensing association) and the many packages in Debian that support MPEG-2/4/H.264 (and all of them support MP3 as well): Do you have any references regarding the enforcement of these patents? MPEG-LA announced a lawsuit against Sagem in May 2004: http://www.mpegla.com/news/n_04-05-03_sagem.pdf followed by a settlement in March 2005: http://www.mpegla.com/news/n_05-03-23_sagem.pdf Earlier, in November 2000, Compaq was sued: http://www.mpegla.com/news/n_00-11-20_m2.html Arnoud -- Arnoud Engelfriet, Dutch patent attorney - Speaking only for myself Patents, copyright and IPR explained for techies: http://www.iusmentis.com/ -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: MP3 decoder packaged with XMMS
Hi Dan, Patentees only win patent infringement cases 1/3 of the time, so it is not unreasonable to feel confident that a dispute would result favorably for the accused infringer. A 2/3 chance of probable bankruptcy versus a 1/3 chance of certain bankruptcy. Not great odds! There is no such thing as being obviously covered by ... [a] patent. In the case of MP3 I wouldn't like to rely on there being much prior art to find. The format dates back a long way, around 20 years. I'm not sure what businesses you are referring to when you say there will be serious reservations about redistributing free software. Potentially any working in multimedia. I note that the new Nokia web tablet, although Linux-based, uses the LGPL GStreamer libraries with the proprietary Fluendo plugins, which are designed specifically to work around the patent licensing problem: http://www.fluendo.com/products.php?product=plugins What evidence, and not just patentee statements or general fear and mis belief within the community, do you have that they have valid patents that cover the entirety of the standard? I'm not in a position to declare that the patents are valid, but I know that the patent holder has actively enforced them in the past, regarding the free software encoders - and could therefore do so again. There's a list of patents on MP3 here: http://www.mp3licensing.com/patents/index.html I also find it hard to believe that the Xiph.org developers would have put many years of work into the Ogg codecs (Vorbis, Theora etc) on the basis of mere FUD. I would be happy to analyze any such evidence for you. That's appreciated! I think it would be great if the SFLC or the PPF could look into the issues surrounding multimedia formats. Debian has apparently decided not to ship a GPL'd MP3 encoder, and other distributions can't ship encoders or decoders. While MP3 and other MPEG formats, including for video, remain de-facto standards, this creates a serious limitation on the usefulness of free software for media production and playback. It's all very well telling users to download the code 'off the internet somewhere' but many users, including in public-funded organisations such as schools or colleges, can't be expected to do that. I find it unreasonable for any sophisticated patent holder to believe free software is non-commercial. I'd expect them to figure out that suing Debian itself wouldn't be profitable. Cheers! Daniel -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: MP3 decoder packaged with XMMS
Patentees only win patent infringement cases 1/3 of the time, so it is not unreasonable to feel confident that a dispute would result favorably for the accused infringer. A 2/3 chance of probable bankruptcy versus a 1/3 chance of certain bankruptcy. Not great odds! Yes, I agree, the patent system is causing substantial public harm and it prejudices small business, like yours, that cannot afford to defend themselves. But, that is not a GPL issue, which was mention in one of the original threads. If IBM or some other well funded company that could defend itself from a patent threat wanted to redistribute the same programs you are choosing not to, they would not be violating the GPL in any sense. There is no such thing as being obviously covered by ... [a] patent. In the case of MP3 I wouldn't like to rely on there being much prior art to find. The format dates back a long way, around 20 years. Patents can't last longer than 20 years. So, any information that is that old is, by definition, prior art. Further, many patents that may in fact be valid are nonetheless sufficiently narrow that functionally equivalent implementations are outside their scope. Thus, you need not win on both invalidity or non-infringement to be free of a patent, you need only show one or the other. I'm not sure what businesses you are referring to when you say there will be serious reservations about redistributing free software. Potentially any working in multimedia. I note that the new Nokia web tablet, although Linux-based, uses the LGPL GStreamer libraries with the proprietary Fluendo plugins, which are designed specifically to work around the patent licensing problem: If the LGPL versions appear to have less risk of infringement, such has nothing to do with their being licensed under the LGPL. Such only results from the way they go about accomplishing the common task. Thus, it is not a GPL issue, it's one of structure and functionality. As such, the GPL'd licensed code could be similarly designed around any such patents. Your point that there are implementations out there that you believe are non-infringing proves that these patents aren't as broad as you would believe them to be. What evidence, and not just patentee statements or general fear and mis belief within the community, do you have that they have valid patents that cover the entirety of the standard? I'm not in a position to declare that the patents are valid, but I know that the patent holder has actively enforced them in the past, regarding the free software encoders - and could therefore do so again. How do you know this? Do you have evidence of such active enforcement (which may be better referred to as assertion, since the term enforcement gives too much credit to the legitimacy of the patent). There's a list of patents on MP3 here: http://www.mp3licensing.com/patents/index.html This is not a list of patents on MP3. It is a list of possibly valid patents that their owner claims would cover MP3. It proves neither that that they are valid or that they actually do cover MP3. Only a court can make those conclusions. I also find it hard to believe that the Xiph.org developers would have put many years of work into the Ogg codecs (Vorbis, Theora etc) on the basis of mere FUD. Yet, you yourself are evidence of the pains folks will go through to avoid possible patent threats. I have not said MP3 does not infringe any valid patent nor that patents pose no threat. All I've said is that we should never assume a patent is indeed valid and infringed simply based on rhetoric and saber rattling and that the threat posed by patents can be managed with the assistance of counsel. SFLC and PUBPAT are here to provide that counsel to the community on a pro bono basis. I would be happy to analyze any such evidence for you. That's appreciated! I think it would be great if the SFLC or the PPF could look into the issues surrounding multimedia formats. Debian has apparently decided not to ship a GPL'd MP3 encoder, and other distributions can't ship encoders or decoders. While MP3 and other MPEG formats, including for video, remain de-facto standards, this creates a serious limitation on the usefulness of free software for media production and playback. It's all very well telling users to download the code 'off the internet somewhere' but many users, including in public-funded organisations such as schools or colleges, can't be expected to do that. If Debian would like us to perform this work, we'd be happy to do so. But, we cannot represent your business, since it is for profit. However, if you'd like to discuss these issues more, always feel free to give me a ring. Best, --Dan Daniel B. Ravicher Legal Director Software Freedom Law Center 1995 Broadway Fl 17 New York, NY 10023-5882 212-461-1902 direct 212-580-0800 main 212-580-0898 fax [EMAIL PROTECTED] www.softwarefreedom.org
Re: MP3 decoder packaged with XMMS
* Daniel James: Ancient history. That happened back in the 90's, and was the catalyst for work to begin on the free software alternatives, such as Ogg Vorbis. See for example: http://www.8hz.com/mp3/ There are more recent cases which have also been enforced against embedded devices containing MP3 decoders. To make things even more bizarre, these patents are not part of the MP3 patent license pool. (Cc: list heavily trimmed.) -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: MP3 decoder packaged with XMMS
Steve, ... since we don't have the money to fight a patent that's being enforced even if it is invalid. Although Debian may not have the financial resources necessary to retain private counsel, the Software Freedom Law Center and Public Patent Foundation are here to provide it pro bono representation on such matters. Please do not hesitate to contact me if there is ever anything we can do to help. Best, --Dan Daniel B. Ravicher Legal Director Software Freedom Law Center 1995 Broadway, 17th Fl. New York, NY 10023 (212) 461-1902 direct (212) 580-0800 main (212) 580-0898 fax [EMAIL PROTECTED] www.softwarefreedom.org -- This message is intended only for the designated recipient(s). It may contain confidential or proprietary information and may be subject to the attorney-client privilege or other confidentiality protections. If you are not a designated recipient, you may not review, copy or distribute this message. If you receive this in error, please notify the sender by reply e-mail and delete this message. Thank you. -- -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: MP3 decoder packaged with XMMS
Hi Dan, If IBM or some other well funded company that could defend itself from a patent threat wanted to redistribute the same programs you are choosing not to, they would not be violating the GPL in any sense. ...unless they licenced the patents from the patent holder? Patents can't last longer than 20 years. So, any information that is that old is, by definition, prior art. The applications for MP3 patents range from 1986 to 1997. Further, many patents that may in fact be valid are nonetheless sufficiently narrow that functionally equivalent implementations are outside their scope. According to reports from free software developers, it's difficult to create MP3 encoders without using technologies described by the patents. See for example: http://users.rsise.anu.edu.au/~conrad/not_lame/patent.html the GPL'd licensed code could be similarly designed around any such patents. I think Gstreamer is under LGPL precisely because of the issue of linking to proprietary, patent-licenced libraries. Your point that there are implementations out there that you believe are non-infringing proves that these patents aren't as broad as you would believe them to be. I'm not aware of any GPL'd MP3 software which is patent-licenced - and even if there was, it would have the Section 7 problem. I know that the patent holder has actively enforced them in the past, regarding the free software encoders - and could therefore do so again. How do you know this? Do you have evidence of such active enforcement (which may be better referred to as assertion, since the term enforcement gives too much credit to the legitimacy of the patent). I'm referring to the cease and desist letters, and demands for annual minimum royalties, that went to free software developers in the late 90's. All of the encoder projects went 'underground' at that point, and many of the distributions removed MP3-related packages. I'm not aware of anyone who was actually sued, but I don't want to be the first. It is a list of possibly valid patents that their owner claims would cover MP3. It proves neither that that they are valid or that they actually do cover MP3. Only a court can make those conclusions. You've seen the movie of Bleak House, right? :-) All I've said is that we should never assume a patent is indeed valid and infringed simply based on rhetoric and saber rattling and that the threat posed by patents can be managed with the assistance of counsel. SFLC and PUBPAT are here to provide that counsel to the community on a pro bono basis. I'm sure that free software multimedia developers could do with some help on these issues. we cannot represent your business, since it is for profit. Absolutely, and I wouldn't expect otherwise. However there are not-for-profit groups of developers working in this area. http://xiph.org/ is one, http://linuxaudio.org/ is another (of which both 64 Studio and Xiph are members). Cheers! Daniel -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: MP3 decoder packaged with XMMS
Hi Florian, There are more recent cases which have also been enforced against embedded devices containing MP3 decoders. I couldn't find anything with a quick search on Google - any keywords I should try? To make things even more bizarre, these patents are not part of the MP3 patent license pool. I'd guess that portable music players, being big business at the moment, are probably attracting all kinds of patent claims, including MP3-related claims from parties other than Fraunhofer/Thomson. As MPEG standards are created by a consortium, there are probably a broad range of patented techniques involved. Cheers Daniel -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: MP3 decoder packaged with XMMS
On Tue, Jul 12, 2005 at 02:38:29AM -0700, Steve Langasek wrote: On Mon, Jul 11, 2005 at 01:45:24PM +0200, Diego Biurrun wrote: On Mon, Jul 11, 2005 at 03:54:12AM -0700, Steve Langasek wrote: However, the reason Debian continues to include the mp3 decoder library is that this patent, like so many other software patents, does not appear to be actively enforced. This is the standard Debian uses in deciding whether to distribute the software; Red Hat evidently uses a different standard. Is that the standard Debian practise? Is that in the policy somewhere? Debian policy governs the technical details of package creation. This is a matter that's out of scope of the policy document; my comments reflect the de facto policy of the ftp team as I understand it. Maybe it's time to create some sort of patent/ftp/XXX policy then. The core of this thread revolves around the problem that Debian's stance towards patents is unclear and inconsistent. Some programs are jugded impossible to package due to patent problems, while others aren't. This is further complicated by the fact that some MP3 encoders and multimedia applications are packaged while others are not, even though they do the same things and thus fall under the scope of the same patents. AFAICT Debian includes many packages that violate software patents, even actively enforced ones. It's simply impossible to avoid. A very prominent example is libts/libdca, where the developers closed the project due to patent threats by DTC Inc.: http://packages.debian.org/stable/libdevel/libdts-dev http://developers.videolan.org/libdca.html DTS Inc. claims that distributing this software is a violation of their patent EP 864 146. At DTS Inc. request, we decided, as a precautionary measure, to provisionally suspend the distribution of libdca while reviewing DTS Inc. claim. This is not an acknowledgement of the validity of the claim. The previous name libdts was changed to libdca as a precautionary measure. So upstream hasn't even decided yet what to think of the patent claim, they've just taken things off-line as a precaution. That's a rather weak precedent for enforcement. VideoLAN is hosted by ECP, a university from Paris where the project originated. DTS Inc. sent ECP a cease and desist letter stating that they should stop developing libdts, get a patent license from them or prepare to get sued. The ECP lawyer tried to settle amicably without success. DTS requested fees amounting to thousands of dollars per day and the university did not want to go to court. That was more than one year ago and libdts is no longer distributed on its own and has been removed from VLC. Furthermore development on the library has stopped. That's as good a precedent for patent enforcement as you'll get. FUD at its best, but it worked. This is how the patent scare works. Diego -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
RE: MP3 decoder packaged with XMMS
** Diego Biurrun :: On Tue, Jul 12, 2005 at 02:38:29AM -0700, Steve Langasek wrote: On Mon, Jul 11, 2005 at 01:45:24PM +0200, Diego Biurrun wrote: On Mon, Jul 11, 2005 at 03:54:12AM -0700, Steve Langasek wrote: However, the reason Debian continues to include the mp3 decoder library is that this patent, like so many other software patents, does not appear to be actively enforced. This is the standard Debian uses in deciding whether to distribute the software; Red Hat evidently uses a different standard. Is that the standard Debian practise? Is that in the policy somewhere? Debian policy governs the technical details of package creation. This is a matter that's out of scope of the policy document; my comments reflect the de facto policy of the ftp team as I understand it. Maybe it's time to create some sort of patent/ftp/XXX policy then. The core of this thread revolves around the problem that Debian's stance towards patents is unclear and inconsistent. Some programs are jugded impossible to package due to patent problems, while others aren't. This is further complicated by the fact that some MP3 encoders and multimedia applications are packaged while others are not, even though they do the same things and thus fall under the scope of the same patents. I was under the impression that Debian *did* have a policy: if the patent is enforced, towards it, then the software will go to non_US -- to the benefit of the sane jurisdictions (as is the EU, in principle). AFAICT Debian includes many packages that violate software patents, even actively enforced ones. It's simply impossible to avoid. A very prominent example is libts/libdca, where the developers closed the project due to patent threats by DTC Inc.: http://packages.debian.org/stable/libdevel/libdts-dev http://developers.videolan.org/libdca.html DTS Inc. claims that distributing this software is a violation of their patent EP 864 146. At DTS Inc. request, we decided, as a precautionary measure, to provisionally suspend the distribution of libdca while reviewing DTS Inc. claim. This is not an acknowledgement of the validity of the claim. The previous name libdts was changed to libdca as a precautionary measure. So upstream hasn't even decided yet what to think of the patent claim, they've just taken things off-line as a precaution. That's a rather weak precedent for enforcement. VideoLAN is hosted by ECP, a university from Paris where the project originated. DTS Inc. sent ECP a cease and desist letter stating that they should stop developing libdts, get a patent license from them or prepare to get sued. The ECP lawyer tried to settle amicably without success. DTS requested fees amounting to thousands of dollars per day and the university did not want to go to court. That was more than one year ago and libdts is no longer distributed on its own and has been removed from VLC. Furthermore development on the library has stopped. That's as good a precedent for patent enforcement as you'll get. FUD at its best, but it worked. This is how the patent scare works. Diego Not down here, thanks God and our corrupt lawmakers. Seriously. Software patents are just plain Evil. -- HTH, Massa -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: MP3 decoder packaged with XMMS
Dan Ravicher wrote: Potentially any working in multimedia. I note that the new Nokia web tablet, although Linux-based, uses the LGPL GStreamer libraries with the proprietary Fluendo plugins, which are designed specifically to work around the patent licensing problem: ... Your point that there are implementations out there that you believe are non-infringing proves that these patents aren't as broad as you would believe them to be. The Fluendo website does not claim anywhere that they avoid the patent licensing problem. Rather, they want to sell you a proprietary plugin together with a patent license. Apparently they have acquired rights to sell licensed plugins. Fluendo provides our customers both with the actual plugin for GStreamer and the needed patent licenses. Customers who already have patent licenses themselves can license the plugins separatly. URL: http://www.fluendo.com/products.php?product=plugins Arnoud -- Arnoud Engelfriet, Dutch patent attorney - Speaking only for myself Patents, copyright and IPR explained for techies: http://www.iusmentis.com/ -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: MP3 decoder packaged with XMMS
The Fluendo website does not claim anywhere that they avoid the patent licensing problem. Rather, they want to sell you a proprietary plugin together with a patent license. Apparently they have acquired rights to sell licensed plugins. Fluendo provides our customers both with the actual plugin for GStreamer and the needed patent licenses. Customers who already have patent licenses themselves can license the plugins separatly. URL: http://www.fluendo.com/products.php?product=plugins What is the basis for their conclusion that any patent license is needed? Did a court of law hold the patents valid and infringed? If not, then no license is needed. They may have signed a license because it was cheaper than fighting the patent, but that is different than being needed and that certainly does not trigger GPL Section 7, which is what I believe was the initial issue raised by this thread, i.e. whether Section 7 is violated because some software is distributed that someone else think may be covered by a possibly valid patent. Such a situation does not trigger GPL Section 7, nor does it forbid redistribution of GPL'd code. --Dan -- Daniel B. Ravicher Legal Director Software Freedom Law Center 1995 Broadway, 17th Fl. New York, NY 10023 (212) 461-1902 direct (212) 580-0800 main (212) 580-0898 fax [EMAIL PROTECTED] www.softwarefreedom.org -- This message is intended only for the designated recipient(s). It may contain confidential or proprietary information and may be subject to the attorney-client privilege or other confidentiality protections. If you are not a designated recipient, you may not review, copy or distribute this message. If you receive this in error, please notify the sender by reply e-mail and delete this message. Thank you. -- -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: MP3 decoder packaged with XMMS
Further, many patents that may in fact be valid are nonetheless sufficiently narrow that functionally equivalent implementations are outside their scope. According to reports from free software developers, it's difficult to create MP3 encoders without using technologies described by the patents. See for example: http://users.rsise.anu.edu.au/~conrad/not_lame/patent.html If these opinions were formed without consulting an attorney, they are not legally competent. That's no offense to them, nor necessarily my opinion, but is instead the state of the law. Only patent attorneys are considered competent by the law to determine the scope of a patent. I wish this wasn't the case, and it disgusts me that it is, but there's little I can do to change the law. As one example of how misleading patents can be, what patents describe and what they actually cover are almost always two different things, with the former being much larger than the latter. Your point that there are implementations out there that you believe are non-infringing proves that these patents aren't as broad as you would believe them to be. I'm not aware of any GPL'd MP3 software which is patent-licenced - and even if there was, it would have the Section 7 problem. There is no Section 7 problem until one of two things happens: (a) a court enjoins distribution or (b) a distributor agrees to cease distribution. Neither of those scenarios is implicated here. Thus, no Section 7 issue whatsoever. And, it is possible to receive a patent license that does not cause a failure to comply with Section 7. The GPL Section 7 says For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, ... Therefore, patent licenses which allow royalty-free redistribution are fine and do not trigger Section 7. Many such licenses have been granted, such as through standard setting bodies, and they can even be negotiated with a payment in upfront fees or minimum annual royalties when necessary. Thus, a patent license in and of itself does not create a Section 7 problem. Absolutely, and I wouldn't expect otherwise. However there are not-for-profit groups of developers working in this area. http://xiph.org/ is one, http://linuxaudio.org/ is another (of which both 64 Studio and Xiph are members). Please feel free to pass along my contact info and encourage them to call or write anytime they have any legal issues on which they'd like some help. That's our mission and we're here to do it. --Dan Daniel B. Ravicher Legal Director Software Freedom Law Center 1995 Broadway, 17th Fl. New York, NY 10023 (212) 461-1902 direct (212) 580-0800 main (212) 580-0898 fax [EMAIL PROTECTED] www.softwarefreedom.org -- This message is intended only for the designated recipient(s). It may contain confidential or proprietary information and may be subject to the attorney-client privilege or other confidentiality protections. If you are not a designated recipient, you may not review, copy or distribute this message. If you receive this in error, please notify the sender by reply e-mail and delete this message. Thank you. -- -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: MP3 decoder packaged with XMMS
On Tue, Jul 12, 2005 at 06:24:33PM -0400, Dan Ravicher wrote: And, it is possible to receive a patent license that does not cause a failure to comply with Section 7. The GPL Section 7 says For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, ... Therefore, patent licenses which allow royalty-free redistribution are fine and do not trigger Section 7. Many such licenses have been granted, such as through standard setting bodies, and they can even be negotiated with a payment in upfront fees or minimum annual royalties when necessary. Thus, a patent license in and of itself does not create a Section 7 problem. Minimum annual royalties doesn't seem royalty-free. Are there really (many) cases where a single upfront fee granted a person a patent license which allowed everyone who received the work--not just him--to also redistribute it? (That seems strange--if a patent holder seeks to profit from a patent, why would he essentially grant the whole world a patent license for the price of one license?) This message is intended only for the designated recipient(s). It may contain confidential or proprietary information and may be subject to the attorney-client privilege or other confidentiality protections. If you are not a designated recipient, you may not review, copy or distribute this message. If you receive this in error, please notify the sender by reply e-mail and delete this message. Thank you. Isn't it somewhat absurd to say don't read that! at the *end* of a message? :) (If you do much communications on publically-archived lists, it would be polite to turn this off. At least it's not in threatening-nastygram-style, as some are ...) -- Glenn Maynard -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: MP3 decoder packaged with XMMS
On 7/12/05, Dan Ravicher [EMAIL PROTECTED] wrote: Absolutely, and I wouldn't expect otherwise. However there are not-for-profit groups of developers working in this area. http://xiph.org/ is one, http://linuxaudio.org/ is another (of which both 64 Studio and Xiph are members). Please feel free to pass along my contact info and encourage them to call or write anytime they have any legal issues on which they'd like some help. That's our mission and we're here to do it. It's very interesting to see this statement crop up over the by-line of the legal director of the Software Freedom Law Center. For those who haven't been watching carefully, that's the OSDL-funded entity, created in February 2005, ostensibly founded to provide legal cover for certain former pro bono clients of Eben Moglen's (principally the FSF and the Samba project). So the SFLC has no history to speak of; but Mr. Ravicher does. (Needless to say, so do the other usual suspects listed on the SFLC's board and executive team.) Mr. Ravicher's public statements on legal matters appear to be largely conformable to the law as I understand it (IANAL), with the exception of his repetition of the canard that it is the knowledge of the particular patent number infringed by a product that puts you at risk of triple damages. In reality, willful ignorance is no more and no less willful than looking up the patent numbers on the packaging and assessing the scope of patent claims yourself. But note that, like certain other, more senior, FSF associates, he has his own clever way of turning FUD about IP law into revenues. Read more at http://www.computeractive.co.uk/vnunet/analysis/2132110/linux-patently-opportunity and http://www.forbes.com/home/enterprisetech/2004/08/02/cz_dl_0802linux.html . Even so, Mr. Ravicher appears to be on the saner end of the range of FSF associates. He seems actually to have been in a courtroom in his capacity as an attorney (though apparently never as lead counsel), and has at least three small victories to report (on pubpat.org, using research apparently supplied by M-CAM) in the administrative arena of the USPTO. I question his use of statistics regarding such disputes, however. And even though these three patents appear to have been chosen as low-hanging fruit, in two out of three cases it remains to be seen whether the patentees will submit revised claims and obtain reissuance of their patents. Office actions of the kind issued in the Lipitor and FAT-long-filenames patents are frequently issued in the course of establishing what claims the patent examiner will allow on the basis of a given disclosure, and narrower claims often succeed. If I were you I would be very, very cautious about inviting the SFLC to hang its first test case on my project. I speak as someone with no legal qualifications but with a certain amount of research under my belt, including an eventually successful (after repeated office actions) patent filing (whose economic rights I do not now own) that certain uses of software in Debian probably infringes. IANAL, TINLA, YMMV. Cheers, - Michael
Re: MP3 decoder packaged with XMMS
On Tue, Jul 12, 2005 at 05:34:45PM -0700, Michael K. Edwards wrote: If I were you I would be very, very cautious about inviting the SFLC to hang its first test case on my project. I speak as someone with no legal qualifications but with a certain amount of research under my belt, including an eventually successful (after repeated office actions) patent filing (whose economic rights I do not now own) that certain uses of software in Debian probably infringes. IANAL, TINLA, YMMV. So we're supposed to take the word of a self-professed collaborator with the current illegitimate patent regime, over the word of someone who works for an organization dedicated to fighting this threat to intellectual freedom? Why would we do that? -- Steve Langasek postmodern programmer -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: MP3 decoder packaged with XMMS
It's very interesting to see this statement crop up over the by-line of the legal director of the Software Freedom Law Center. For those who haven't been watching carefully, that's the OSDL-funded entity, created in February 2005, ostensibly founded to provide legal cover for certain former pro bono clients of Eben Moglen's (principally the FSF and the Samba project). So the SFLC has no history to speak of; but Mr. Ravicher does. (Needless to say, so do the other usual suspects listed on the SFLC's board and executive team.) Basically correct, although FSF has also been a pro bono client of mine for several years. Mr. Ravicher's public statements on legal matters appear to be largely conformable to the law as I understand it (IANAL), with the exception of his repetition of the canard that it is the knowledge of the particular patent number infringed by a product that puts you at risk of triple damages. In reality, willful ignorance is no more and no less willful than looking up the patent numbers on the packaging and assessing the scope of patent claims yourself. You are completely wrong on this point. Willful infringement under patent law requires the infringer to have had actual knowledge of a patent. Without actual knowledge, one cannot be found to have infringed a patent willfully. If you point me to authority you believe suggests otherwise I would be happy to address it. But note that, like certain other, more senior, FSF associates, he has his own clever way of turning FUD about IP law into revenues. Read more at http://www.computeractive.co.uk/vnunet/analysis/2132110/linux-patently-opportunity and http://www.forbes.com/home/enterprisetech/2004/08/02/cz_dl_0802linux.html . Yes, prior to forming SFLC with Professor Moglen, I represented some clients for fee. I do not do so any longer. However, having said that, I dispute that I have ever spread FUD. In fact, I have helped minimize it. The matter you cite is one where I quantified the previously indeterminable risk patents pose to the Linux kernel, which had been identified long before my work by Richard Stallman, HP, RedHat and many others. I concluded that, although the risk patents pose to the Linux kernel is not zero, it is no larger than the risk patents pose to other operating system kernels and might actually be much less. I question his use of statistics regarding such disputes, however. I am happy to provide you support for the use of statistics I have made on which you have questions or issues if you will raise them with me. And even though these three patents appear to have been chosen as low-hanging fruit, in two out of three cases it remains to be seen whether the patentees will submit revised claims and obtain reissuance of their patents. Office actions of the kind issued in the Lipitor and FAT-long-filenames patents are frequently issued in the course of establishing what claims the patent examiner will allow on the basis of a given disclosure, and narrower claims often succeed. True. However, a narrower patent may nonetheless eradicate any public harm being caused by the patent by no longer capturing functionally equivalent design arounds. Also, the FAT patent matter received a second office action about a week or so ago that again rejected all of its claims. If I were you I would be very, very cautious about inviting the SFLC to hang its first test case on my project. I completely agree that potential clients should do research before retaining counsel and that both competency and other factors should impact the decision of what counsel to retain. Without question, clients should retain counsel that they feel comfortable with and trust. However, just FYI, SFLC already represents a large number of clients, so no new client would be anywhere close to our first. Also, Professor Moglen and I have been providing pro bono legal services to various free software clients for many years now. The only thing that is new is that we have received a grant to enable us to grow a firm to expand our capacity. If people wish to contact us about how we might be able to help them, terrific; if not, we wish them all the best. Warm regards, --Dan Daniel B. Ravicher Legal Director Software Freedom Law Center 1995 Broadway Fl 17 New York, NY 10023-5882 212-461-1902 direct 212-580-0800 main 212-580-0898 fax [EMAIL PROTECTED] www.softwarefreedom.org -- This message is intended only for the designated recipient(s). It may contain confidential or proprietary information and may be subject to the attorney-client privilege or other confidentiality protections. If you are not a designated recipient, you may not review, copy or distribute this message. If you receive this in error, please notify the sender by reply e-mail and delete this message. Thank you.
Re: MP3 decoder packaged with XMMS
On Tue, Jul 12, 2005 at 06:37:17PM -0700, Steve Langasek wrote: So we're supposed to take the word of a self-professed collaborator with the current illegitimate patent regime, over the word of someone who works for an organization dedicated to fighting this threat to intellectual freedom? Ooh, a 'collaborator', that's a nice one. I know.. Instead of having a rational discussion, how about we just see how many emotionally charged insults we can throw around? You communist! --Adam -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
