[Mageia-dev] Mirror layout

andre999 andr55 at laposte.net
Sat Dec 11 06:07:41 CET 2010

Wolfgang Bornath a écrit :
> 2010/12/10 andre999<andr55 at laposte.net>:
>> We should remember that patents are a civil right accorded by rules
>> differing from country to country.  Many countries don't offer patents on
>> software.
> But some do and here we are talking about those that do.

OK ...

>> Patent holders have to use the courts to enforce these rights, who often
>> deny or limit patent holder's claims.
> It is not about enforcing patent rights, it is about distributing
> software which is infringing existing patent rights in said countries.

Software (or anything else) only infringes on a patent if a court says 
so.  If the court hasn't pronounced, there is no infringement.
All a patent offers is the right to make a claim of infringement.
If it is not enforced over a long period of time, courts often decide 
that it is no longer enforceable.  (One sees that in many U.S. court 

>> So in addition to any theoretical rights of software patent holders, there
>> is the consideration "is it worth the money and effort for the potential
>> gain in royalties" ?
> This is not the question because we are not talking about costly court trials.

The damages claimable are in proportion to the loss the claimant can 
demonstrate.  So even if they win (at least partially), will it be worth 
the effort ?

>> "cease and desist" letters are just warnings.  Any attached "bill" would
>> only have effect if validatated by a court.
> Yes, I can refuse to pay, then it goes to court. And with an existing
> law which protects patented software, who do you think will win?

Again, until it decided by a court, it is only an unvalidated claim.
In the U.S., rarely does a patent holder win enough to justify their 
legal costs.  If they win.  A lot of the costs are pretrial preparation, 
to develop a case.

>> And how does that translate for free software ?
> It has nothing to do which subject it is. Such warnings are sent out
> to the hundreds about all kinds of things like missing or incorrect
> imprints on websites or whatever. There are whole lawyer's companies
> specialized on that. Remember, we are not talking about Mageia and/or
> large companies or organisations as I already wrote, we are talking
> about the private mirror maintainer who has no backup.

These warnings are a tactic to scare the naive, to a large degree.
Lawyers and others do it everywhere.  Did you realise that these 
warnings generally contain a statement to ensure that they can't be used 
in court against the author ?  Because the usually excessive demands 
will work against them in court ?

> Well, maybe I can not make myself understood sufficiently. All I can
> say, it has nothing to do with paranoia, it is reality. We
> (mandrivauser.de) decided unanomously not to mirror PLF because of
> such reasons because there are possibilities of such liabilities even
> in Germany.

I would suggest that you would have more risk each time you cross the 
street, than your site to be pursued for carrying packages which might 
be subject to patents.  But that is for you to decide.

The PLF has several sites in the U.S., who remain unthreatened despite 
the fact that they distribute software using patented mpeg technology.
And the patent holders are pursuing others in the U.S.  The difference 
being that the others are making a profit with the mpeg technology.
That is an important part of the potential to win enough in court to 
make it worth the cost.  It is particularly important in the U.S. 
courts, according to the various information I encounter.

> So, all in all my point is:
> separating such software from the rest makes it possible for mirror
> maintainers in such difficult areas to decide. Mixing such software
> with all other software makes it almost impossible for same small
> mirrors to mirror Mageia at all.

I do see your point.  I just think that you are greatly overestimating 
the risk.

Don't forget, virtually all software, in some respect, can be considered 
subject to patent claims.
Microsoft has a patent on some charactistic necessarily used by all 
spreadsheets.  Including Visicalc, which predates anything Microsoft 
(I forget the details, something ridiculously simple.)
It is obviously unenforceable; no court would endorse it.

The Linux kernel is supposedly subject to many patents.
So if you want to avoid all potential software patent claims, you should 
probably avoid Linux.

Don't forget, as Romain said, if a particular software becomes targeted 
or a patent claim becomes problematic, we can deal with it when the 
problem arises.

Another point is that until we would be notified about such a patent 
claim against us, it is highly unlikely that any court would award any 
damages or compensation.  Patent holders have the right to not request 
royalties, selectively or otherwise.
Our position creating or distributing free software would create the 
likely presumption that the patent holder chose not to pursue royalties 
from us.  (At least it works like that in the U.S.)

Seriously, I don't think that any Mageia mirror is at risk - at least 
not before being directly notified of a specific claim - and being given 
the opportunity to withdraw the offending package(s).

another 2 cents :)


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