Timothy R. Hoerning wrote:
>On Tue, 26 Jul 2005 Eric@megageek.com wrote:
>
>
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>>I thought that was the loophole that meant you can burn copies of CDs and
>>DVDs.
>>
>>
>
> That's fair use, and it applies to copyrights, not patents. It's also a
>very volatile subject as of late. There are no concrete rules on it. From
>what I understand it is based in case law.
>
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>
I think the parallel legal thinking is this: it's up to the patent
(copyright) holder to defend the patent (copyright). That means they
have to issue fair warning that the patent (copyright) is being
infringed upon and demand that the offending party cease and desist, and
that failure to do so can result in legal action. At least in copyright
law, notification of infringement is necessary.
If the infringing party is brought to court, the general trend is that
if the offending party is trying to profit illegally from a copyright or
patent they do not hold, they get their weenie whacked. If the plaintiff
cannot show an attempt on the part of the defendant to profit from the
assigned right illegally (or an attempt to destroy the profits of the
patent holder), it's usually next to impossible to obtain any
significant monetary relief. In that sense, prior intent counts a lot.
The law is pretty clear on home recording of copyrighted material for
personal use for which one has paid for initial use and has no intent to
profit from that recording--that's protected by court rulings much
earlier than the 1996 Digital Millennium Act. Most courts would apply
the same logic to cases involving patent infringement--without intent to
profit by illegal use of the patent, or, without intent to produce an
item at or below cost without license in an effort to ruin the patent
holder's opportunity to profit from the patent, there's little proof of
harm. And that's what counts in civil court--has the plaintiff been
harmed? A refusal to buy the patent holder's product doesn't constitute
harm.
Cheers.
--
Michael D. Porter
Roswell, NM
Never let anyone drive you crazy when you know it's within walking distance....
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