shop-talk
[Top] [All Lists]

Re: Engineering 101

To: "Timothy R. Hoerning" <hoerni@cooper.edu>
Subject: Re: Engineering 101
From: Michael Porter <portermd@zianet.com>
Date: Tue, 26 Jul 2005 15:15:24 -0600
Timothy R. Hoerning wrote:

>On Tue, 26 Jul 2005 Eric@megageek.com wrote:
>
>  
>
>>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.
>
>  
>
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....






<Prev in Thread] Current Thread [Next in Thread>