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
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