Bob Sneidar wrote:
>> On Jul 19, 2017, at 13:31 , Stephen Barncard wrote:
>>
>> Which means every network and independent film-maker is breaking the
>> law...
>> because I guarantee that they're not looking at the EULA when
>> sending off their work for broadcast or theater. I see this every
>> day.
>>
>> Kinda like "don't ask don't tell" if you ask me.
>>
>> And unenforceable. They'd have to sue everyone using their product.
>> To assume the two top video editing programs for independents can't
>> be used for professional use is ludicrous.
>>
>> Who would be the 'cop' that would enforce this?
>
> At this point I think common law would kick in, since they have been
> allowing the practice for well over 7 years now.
I am not an attorney, and nothing I write should be construed as legal
advice. I can only describe my own practices in my own office (Dr.
Hawkins, please feel free to correct anything here that may be inaccurate).
While trademarks seem to have a case law history of frowning on what
courts may see as "selective enforcement", I believe that constraint is
nearly unique to trademarks; broader guidelines apply for defining and
enforcing infringement of patents (and copyrights too, AFAIK), at least
in US jurisdictions.
Remember the GIF controversy, where Unisys began broad enforcement of
their LZW patent only after GIF had become nearly universally adopted:
<https://mike.pub/19950127-gif-lzw>
Indeed, one of the key motivations for creating PNG was to have a
replacement for GIF that wasn't patent-encumbered (extra bonus points
that being a more modern format PNG supports a wide range of great
features far beyond anything GIF ever dreamed of).
MP3's patents were similarly contentious:
<http://www.nytimes.com/2007/03/05/technology/05music.html>
Personally, I would not wager my company or any client's company on the
hope of a favorable ruling from a court which contradicts a written
license agreement.
In addition to legitimate patent holders like MPEGLA, we've also seen an
increase in patent trolling from non-practicing entities suing small
devs for the most obscure patents imagined*. Newegg has the resources
to fight such things, and with good success so far (our entire industry
owes them a debt of gratitude for doing more to slow patent trolls than
any other single company has done):
<https://www.law360.com/articles/784539>
But I have fewer legal resources than NewEgg, so I need to minimize risk
exposure where practical. For me this begins with reading license
agreements, and acting on them with a conservative interpretation of
their terms, openly discussing any potential risks with clients so they
can review options with their counsel.
* Many patents asserted by NPEs are so broad and/or vague they could be
met with piles of prior art. But that requires hiring a law firm
specializing in IP and funding the research and trial time. Patent
trolls depend on this being prohibitively expensive for small devs, who
are often eager to settle for a fraction of what it would cost to defend
themselves.
The USPTO cannot be expected to have the resources to deny patent
applications based on prior art research, or the authority to interpret
definitions of relevant prior art as they may pertain to a given
application.
So it falls on the courts to decide these things, and patent litigation
is among the most expensive categories of legal practice.
These are among the many reasons I side with the EFF and others opposed
to software patents.
Several years ago New Zealand pretty much banned software patent cases
from their courts, a change many of us small devs hope will gain broader
international support:
<http://www.zdnet.com/article/new-zealand-bans-software-patents/>
--
Richard Gaskin
Fourth World Systems
Software Design and Development for the Desktop, Mobile, and the Web
____________________________________________________________________
ambassa...@fourthworld.com http://www.FourthWorld.com
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