Wolfgang Bornath a écrit :
2010/12/10 andre999<and...@laposte.net>:
We should remember that patents are a civil right accorded by rules
differing from country to country. Many countries don't offer patents on
software.
But some do and here we are talking about those that do.
OK ...
Patent holders have to use the courts to enforce these rights, who often
deny or limit patent holder's claims.
It is not about enforcing patent rights, it is about distributing
software which is infringing existing patent rights in said countries.
Software (or anything else) only infringes on a patent if a court says
so. If the court hasn't pronounced, there is no infringement.
All a patent offers is the right to make a claim of infringement.
If it is not enforced over a long period of time, courts often decide
that it is no longer enforceable. (One sees that in many U.S. court
decisions.)
So in addition to any theoretical rights of software patent holders, there
is the consideration "is it worth the money and effort for the potential
gain in royalties" ?
This is not the question because we are not talking about costly court trials.
The damages claimable are in proportion to the loss the claimant can
demonstrate. So even if they win (at least partially), will it be worth
the effort ?
"cease and desist" letters are just warnings. Any attached "bill" would
only have effect if validatated by a court.
Yes, I can refuse to pay, then it goes to court. And with an existing
law which protects patented software, who do you think will win?
Again, until it decided by a court, it is only an unvalidated claim.
In the U.S., rarely does a patent holder win enough to justify their
legal costs. If they win. A lot of the costs are pretrial preparation,
to develop a case.
And how does that translate for free software ?
It has nothing to do which subject it is. Such warnings are sent out
to the hundreds about all kinds of things like missing or incorrect
imprints on websites or whatever. There are whole lawyer's companies
specialized on that. Remember, we are not talking about Mageia and/or
large companies or organisations as I already wrote, we are talking
about the private mirror maintainer who has no backup.
These warnings are a tactic to scare the naive, to a large degree.
Lawyers and others do it everywhere. Did you realise that these
warnings generally contain a statement to ensure that they can't be used
in court against the author ? Because the usually excessive demands
will work against them in court ?
Well, maybe I can not make myself understood sufficiently. All I can
say, it has nothing to do with paranoia, it is reality. We
(mandrivauser.de) decided unanomously not to mirror PLF because of
such reasons because there are possibilities of such liabilities even
in Germany.
I would suggest that you would have more risk each time you cross the
street, than your site to be pursued for carrying packages which might
be subject to patents. But that is for you to decide.
The PLF has several sites in the U.S., who remain unthreatened despite
the fact that they distribute software using patented mpeg technology.
And the patent holders are pursuing others in the U.S. The difference
being that the others are making a profit with the mpeg technology.
That is an important part of the potential to win enough in court to
make it worth the cost. It is particularly important in the U.S.
courts, according to the various information I encounter.
So, all in all my point is:
separating such software from the rest makes it possible for mirror
maintainers in such difficult areas to decide. Mixing such software
with all other software makes it almost impossible for same small
mirrors to mirror Mageia at all.
I do see your point. I just think that you are greatly overestimating
the risk.
Don't forget, virtually all software, in some respect, can be considered
subject to patent claims.
Microsoft has a patent on some charactistic necessarily used by all
spreadsheets. Including Visicalc, which predates anything Microsoft
produced.
(I forget the details, something ridiculously simple.)
It is obviously unenforceable; no court would endorse it.
The Linux kernel is supposedly subject to many patents.
So if you want to avoid all potential software patent claims, you should
probably avoid Linux.
Don't forget, as Romain said, if a particular software becomes targeted
or a patent claim becomes problematic, we can deal with it when the
problem arises.
Another point is that until we would be notified about such a patent
claim against us, it is highly unlikely that any court would award any
damages or compensation. Patent holders have the right to not request
royalties, selectively or otherwise.
Our position creating or distributing free software would create the
likely presumption that the patent holder chose not to pursue royalties
from us. (At least it works like that in the U.S.)
Seriously, I don't think that any Mageia mirror is at risk - at least
not before being directly notified of a specific claim - and being given
the opportunity to withdraw the offending package(s).
another 2 cents :)
André
