Internet wide chat

[Denver Gingerich]

On Tue, Apr 22, 2008 at 10:31 AM, Bernie Innocenti <bernie at codewiz.org> wrote:
> Urko Fernandez wrote:
>  > On Tue, 2008-04-22 at 13:13 +0200, Bernie Innocenti wrote:
>  >> The "download codecs yourself" (aka "piracy at home") is an
>  >
>  > I don't think you can call it piracy when all you are doing is using the
>  > free implementation of a codec. This is completely legal in some
>  > countries, you are not stealing anything, as a matter of fact, even when
>  > you download unlicensed codecs, you are still not stealing it, let alone
>  > pirating it, it's just copyright infringement.
>
>  IANAL, but I'd like to point out what the FSFE explained at
>  the FOSDEM 2007 keynote, the way I understood it.  My friend
>  Andriani, an IP lawyer, is on Cc to correct me in case I said
>  something incorrect.
>
>  Unlike common belief, creating, distributing and using patented
>  software is not _illegal_ per se, not even in countries accepting
>  software patents.
>
>  There's no law specifically disallowing the use of patented
>  ideas.  There's however law that grants the patent holder the
>  right to ask you for a compensation if you use their idea.

The patent holder doesn't just have the right to "ask" you for
compensation, they also have the right to get the government to
_force_ the compensation out of you (in countries where patents are
enforced).

>  This is very different from copyright law, which is being enforced
>  proactively and is punished with fines and in some cases even jail.

If you don't pay the patent holder the amount the courts decide is
fair to compensate them for infringement, then fines (and possibly
jail) would be the next recourses from what I understand.

The primary difference between patent and copyright infringement is
that the value of the infringement for a single private user is much
higher in copyright infringement so it can be profitable to go after a
single private user that is infringing copyright.  A patent holder
probably couldn't get very much in the way of damages out of a single
private user for infringing on their patent.  Companies distributing
patent-infringing products are a much better target.

>  In other words, a patent breach is not trouble between you and your
>  country.  It's between you and the patent holders. If they do not
>  notice, or do notice but do not care to go after you, then you're
>  totally fine.  Legally and morally.

That depends what you believe to be legal and moral.  It is true that
patent law is civil law, not criminal law (in most countries), but
that doesn't mean we should respect it any less in my opinion.

Just because they don't go after you when they find out about it,
doesn't mean they can't go after you several months down the road
after you have incurred more damages and they can sue you for more.

>  And even if they _do_ ask you, patent law only allows patent holders
>  a compensation proportional to the market opportunity involved in
>  the specific breach.  So, if I download an mp3 codec, I can be
>  asked to refund the market value of an mp3 codec.
>
>  Sweet, eh? :-)

As the individual user, yes, it is "sweet".  Patent holders can't sue
you for very much.  However, the person distributing it could be sued
for quite a bit if they distribute to many people.

Making the user download the codec on their own just shifts the
infringement responsibility away from OLPC onto whoever is hosting the
codec.  If the codec is hosted on a server in some country where
patent law is not enforced, you might be ok.  But you can't rely on
the host to be available so your software may become useless if it
relies on that codec to work.

The only solution in my opinion is to use entirely patent-free codecs
or codecs where royalty-free patent rights have been granted for all
patents used.  That way you can distribute them with the laptops and
not need to worry about some server hosting patented codec
implementations going down.

I am not a lawyer.  This is not legal advice.

Denver