(no subject)

Claude L. Bullard (bullardc@source.asset.com)
Wed, 15 Feb 1995 11:00:49 -0500

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