B. Allen
Tele*Mark
On Wed, 15 Feb 1995, Claude L. Bullard wrote:
> Hmm. This is a general problem with laissez-faire systems. They
> equate to "let the buyer beware". However, timing in enforcement
> of a patent may not necessarily equate to giving up that right
> or a "blatent abuse of power of patent" which would indicate intent. Neither
> could be substantiated unless prima facie (legally sufficient to establish
> a fact or a case unless disproved) evidence of a conspiracy
> (e.g., memos directing responsible parties to distribute and conceal) is presented.
> Unisys is a very large corporation and it is possible that the
> parties responsible for enforcing patents and collecting royalites
> were unaware of the infringement. The "warped perception
> of the media" is an anthropomorphization of an abstract entity ('media").
> The idea of tacit approval by a corporate entity is interesting, but again,
> would require evidence, that is, since action was taken eventually,
> the state or accuser must prove actions of prior approval.
>
> In the music business where very large distribution of copywritten material is quick, the
> enforcement and collection of royalites is loose and based on administration
> by societies (BMI, ASCAP, SESAC, etc.) who literally go door
> to door to enforce payment to publishers and songwriters. A user
> of a broadcast system may copy for personal use but may not
> distribute for profit. However, a nightclub or restaurant owner who
> has a sound system on which recorded or live broadcasts of copywritten
> material are used must pay a fee for this. Collection and enforcement
> is difficult but without it, very little money would return to the copywrite
> owners (royalites from sales of recordings are only one part of the
> revenue). Therefore, it is the responsibility of the user (the owner of
> the broadcast system) to ensure that the material used and the
> resulting fees are paid. It is the responsibility of the publisher of the music
> to ensure that no copywritten material is incorporated. A similar situation
> may prevail in this case, but that takes lawyers and judges to sort out.
>
> I am not a lawyer nor am I in any way involved with this case.
> I am not a representative of Unisys Corporation although I am
> employed by Unisys in other capacities. This post is my opinion only.
> I posit:
>
> 1. The Internet service providers as with all broadcast system owners
> and the makers of software (as with music publishing companies) must regulate the
> usage of software (let the seller beware). Who created the software that
> alledgedly infringes on the patent? Are the individuals or their companies culpable?
> If no culpable parties can be found for this usage, the Internet
> service providers may be culpable as they are the collectors of fees for its use.
> This may be applied to Internet service providers who enable the
> usage of freeware to ensure that the freeware has no legal encumbrances
> (similar to a real estate title search).
>
> As with "malpractice" in other business disciplines, this
> is likely to result in increased fees for insurance, or in discontinuing
> business transactions which have potential for litigation, e.g., turn
> off the Web sites or interfaces to them until such fees can be collected,
> or permanently if the risk cannot be mitigated.
>
> 2. Has Unisys offered "grace" and have other users
> of the software (e.g., Adobe) licensed it? If so, evidence
> of intent to ameliorate damage to unaware parties, and of intent
> to legally collect owed fees is extant. These actions indicate
> awareness of responsibility and may offset claims of "blatant abuse".
>
> 3. Accusatory statements without factual basis in a public
> broadcast media can constitute commission of libel (i.e., a written
> or oral defamatory statement or representation published without
> just cause and tending to expose another to public contempt, the act,
> tort or crime of publishing such a libel). There is precedent for such
> suits. While point-to-point e-mail (private communications) are
> constitutionally protected, posting libelous statements to
> bulletin boards is public communication and may be considered
> culpable acts.
>
> Internet is no longer a *friendly* community of researchers. It is an
> immature public business broadcast system. The W3O, the Internet
> Society and others(?) must now consider the problems
> faced by users of the services they engender. Firm policies
> and the means for enforcing these policies must be established
> for the Internet community and those business entities involved
> in litigable transactions. Any culpable entity transacting
> business or establishing relationships with these must also
> consider the problems and consquences of these actions or
> the failure to perform these actions that can involve them in litigation.
>
> I don't want to rain on the parade, but this may be the reason
> no large corporations created the WWW on Internetted
> systems although the knowledge existed before CERN and others used it
> to design and propagate the WWW. The risks were obvious.
>
> Len Bullard
>