[Mageia-dev] Mirror layout

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 
+decisions.)
+
+>> 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 
+produced.
+(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 :)
+
+André
+