That means the IETF and the Chair's role itself can be sued for this. I
suggest you folks investigate this and rethink the IPR rules because
this makes ISOC criminally liable for this action as a RICO claim one
would think.
Folks- there is a fundamental legal breakdown with two key issues - the
first is PATENTS and the IETF's Liability and the other is the abuse of
the RESEARCH EXEMPTION which will not apply to anyone outside of the
IETF workflow republishing anything from these mailing lists.
How this all boils down is that we have been lied to by many here who
apparently want us to be legally accountable for patent and copyright
damages - or they want to destroy those global IP protection schemes
generally in what I call the "The world owns it because I wont pay for
the fact I stole it" mindset.
The legal precedents are simple and show how incompetent the IPR WG has
been in designing practices which intentionally break the law this
content from the Ninth Circuit District Court's Jury Instructions book
is excerpted. This then, if there is a liability, is most likely what
your sponsors are in fact liable for.
---
In the area of patent and copyright infringement, there is some
authority for submitting the issue of willfulness to the jury. /See,
e.g., Shiley, Inc. v. Bentley Lab./, 794 F.2d 1561, 1568 (Fed.
Cir.1986) (applying 35 U.S.C. § 284), /cert. denied/, 479 U.S. 1087
(1987).
"Willful infringement carries a connotation of deliberate intent to
deceive. Courts generally apply forceful labels such as
'deliberate,' 'false,' 'misleading,' or 'fraudulent' to conduct that
meets this standard." /Lindy Pen Co. v. Bic Pen Corp/., 982 F.2d
1400, 1406 (9th Cir.1993) (also citing cases in other circuits
regarding elements of a willfulness claim). /See also Committee for
Idaho's High Desert, Inc/.,/v. Yost/, 92 F.3d 814, 825 (9th
Cir.1996) (the term "exceptional" in 15 U.S.C. § 1117(a) for
purposes of imposing treble damages, generally means the
infringement was "malicious, fraudulent, deliberate or willful")
(citing /Lindy Pen Co./, 928 F.2d at 1408);/Nintendo of America,
Inc. v. Dragon Pacific Int'l/, 40 F.3d 1007, 1010 (9th Cir.1994)
(where defendant willfully infringes trademark, trebling the damages
is appropriate);/VMG Enters. v. F. Quesada & Franco, Inc/., 788 F.
Supp. 648, 662 (D. Puerto Rico 1992) (treble damages granted when
defendant's infringing actions are deemed to have been made
"knowingly and willfully");/Polo Fashions v. Rabanne/, 661 F. Supp.
89, 98 (S.D. Fla.1986) (in absence of extenuating circumstances,
profits are to be trebled where counterfeiting is intentional and
knowing).
Regarding willful blindness, /see//Hard Rock Café Licensing Corp. v.
Concession Servs/., 955 F.2d 1143, 1149 (7th Cir.1992) (to be
willfully blind, a person must suspect wrongdoing and deliberately
fail to investigate); /Chanel, Inc. v. Italian Activewear of
Florida/, 931 F.2d 1472, 1476 (11th Cir.1991) (willful blindness
could provide requisite intent or bad faith; determination of
willful blindness depends on the circumstances and will generally be
a question of fact for the factfinder after trial).
A court may enter judgment for a damage award under 15 U.S.C. §
1117(a) upon a finding of willfulness as well. /See Sealy, Inc. v.
Easy Living, Inc./, 743 F.2d 1378, 1384 (9th Cir.1984) (district
court found that conduct constituted willful and deliberate bad
faith infringement of plaintiff's trademarks that was intended to
and in fact did result in deception of the public); /Friend v. H.A.
Friend & Co./, 416 F.2d 526, 534 (9th Cir.1969) (defendant's acts
must be willful and calculated to trade upon the plaintiff's
goodwill). /See also Horphag Research Ltd. v. Pellegrini/, 337 F.3d
1036, 1042 (9th Cir.2003) ("Exceptional cases include cases in which
the infringement is malicious, fraudulent, deliberate, or willful)
and/Gracie v. Gracie/, 217 F.3d 1060, 1068 (9th Cir.2000).
---
What this finally reduces to is that we need a NEW PATENT AND IP POLICY
and since all specific IETF Standards efforts come with code to
implement and allow testing of the protocol in question, it is in fact a
direct infringement. While the IETF is protected from these issues in
publishing the documents - its members are not. And the IETF's copyright
exemptions under section 107 clearly do not apply to parties publishing
that information as part of their commercial offerings years later after
all of that research is completed...
Sorry but reality is what it is.
Todd Glassey
--
Todd S. Glassey
This is from my personal email account and any materials from this account come
with personal disclaimers.
Further I OPT OUT of any and all commercial emailings.
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