On 7/16/05, Arnoud Engelfriet <[EMAIL PROTECTED]> wrote: [snip] > (5) An act which, apart from this subsection, would constitute an > infringement of a patent for an invention shall not do so if - > > (a) it is done privately and for purposes which are not commercial;
OK, this makes sense. Probably means I can bake cookies from a patented recipe without infringing the patent as long as I don't turn around and hold a bake sale. My execrable Deutsch is still enough to tell me that German law is similar. > > At least in US copyright law as I understand it (which borrowed the > > term from patent law), "contributory infringement" can't be found > > where there is no direct infringement to be contributed to, nor even > > where there are substantial non-infringing uses of the product and the > > distributor makes a good-faith attempt to discourage, and avoid > > deriving substantial revenues from, infringing uses. > > Right. In most patent laws, the act of distribution of a product > is by itself a direct infringement. Even when the distribution > is intended for individuals that want to privately use the product. > So I don't think this is going to help you much. Right, that's the same as US law AIUI. > This of course presumes that a sequence of bits is a "product" in > patent law. I'm not aware of any caselaw either way. But it does > seem likey that this would be covered by the "essential element" > clause in patent law. See e.g. article 60(2) and (3) UK Patent Act: [snip] It would clearly be a misreading of the legislative intent to say that neither manufacturer nor distributor nor end user needs to obtain a patent license just because the end user isn't making "commercial" use of the product. > One could argue that "other person entitled to work the > invention" can mean "a person performing the acts privately > and for purposes which are not commercial". I'd have to check > with a UK colleague whether that's accurate. Probably not, if the only basis for that entitlement is the statutory out provided in 60 (5) (a). But if Thomson actually were to express the intention of exempting private users of an open source implementation from the need for a patent license ever to have been obtained for _their_copy_ -- i. e., if in Thomson's official view their usage (transcoding other audio formats to and from MP3s for personal use) is such that neither upstream, nor packager, nor end user needs to pay a per-unit fee for that copy -- that's a very different ballgame. (For DFSG purposes, it would of course also be necessary to verify that no per-implementation fee was demanded if one acts in good faith to communicate the limits of this "safety zone" to recipients, lest downstream developers should be obligated to pay a lump sum when renaming the package or merging it into something larger.) I'm not saying that I think that Thomson is offering such a deal, but I'm not saying they aren't (or haven't already) either. My impression is that they are focusing on extracting revenues in return for the mastering of MP3s for purposes of commercial distribution. It's a fine point and I know there are some DDs who won't look at it this way, but if the software authors aren't attempting to discriminate among fields of endeavor -- only disclaiming responsibility for obtaining patent rights from a third party on anyone's behalf, and advising recipients that upstream focuses on the "substantial non-infringing uses" (personal use and use by patent licensees) that protect upstream and distributor from allegations of infringement -- then I think there's at least a case for calling it DFSG-free. I care about this principally because I'd like to see a model "square deal" that qualifies as free speech whether or not it's free beer. Commercial, end-user-oriented MP3 encoders, hardware and software, compete with one another and with other formats anyway; will they really be all that pissed at Thomson for giving the green light to LAME and its like? As psycho-acoustic research tools, toys for the ABXers at Hydrogenaudio, and building blocks for product mock-ups under the umbrella of a patent sharing agreement, LAME and libmad and ffmpeg and so forth are interesting and useful without cutting unduly into the revenue stream that amortizes off the cost of research. If Debian and Thomson knock this domino over, someday even DeCSS may be blessed by the powers that be. (Though IMHO the only non-infringing use it really has is the product mock-up scenario.) Cheers, - Michael (IANADD, IANAL, TINLA)