> On 29 Sep 2022, at 21:37, drago01 <drag...@gmail.com> wrote:
>
>
>
> On Wednesday, September 28, 2022, Clemens Lang <cll...@redhat.com
> <mailto:cll...@redhat.com>> wrote:
> Hi,
>
> Michael J Gruber <m...@fedoraproject.org <mailto:m...@fedoraproject.org>>
> wrote:
>
> Understanding is helped greatly by communication, though. Legal answers
> such as "We can not" do not further this understanding, and "We can not
> and we can not tell you why" is not much better, but these are the typical
> answer we get, not even with a "sorry, but we can't". Obviously, these
> legal questions are difficult to explain, but it can't be true that each
> such case is under a "gag order”.
>
> A lawyer at a previous employer told me that explanations of such decisions
> can be used against you in court. Presumably, this also applies here.
>
> That's sounds overlay paranoid. How can an explanation on why you are *not*
> doing something be used against you in court? I can get why "we don't think
> that patent XYZ applies so this is fine to ship" is problematic, but the
> other way around just doesn't make sense.
It’s related to additional damages for wilful infringement; if I say “I will
not ship foo because I cannot get a suitable licence for patent US abc123455”,
and the owner of that patent then claims I infringe because I ship bar, which
they claim infringes patent US abc123455, they can also claim that my
infringement of patent US abc123455 by shipping bar was wilful, because I
clearly knew of the patent, I had analysed it to determine what it might apply
to, and I’d decided to ship *bar* anyway, even though I knew or should
reasonably have known (based on my analysis of why I couldn’t ship foo) that
bar would put me into infringement.
Unfortunately, this is the flip side of well-meant legislation around wilful
infringement - it’s simplest for a big US entity like Red Hat to simply say
“no, and we’re not telling you why” to packages, because then there’s nothing
to build a claim of wilful infringement around.
—
Simon Farnsworth
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