Cyberheat Inc. (TopBucks) Licenses with Acacia

I still can't get past this bit in U.S. patent law that requires that you must register a patent inside of a year of the technology becoming public domain.

I've included a couple of extracts from the U.S. Patent Act that I'm sure others of you have read, but it may give some insight into why Acacia's claims are invalid to those that haven't done any research into this matter. It might also get those of you that are claiming that the big boys are "rolling over too easily" to rethink your position.

The following extract basically says that if the technology was in existence when the patent claim was filed that the patent request is invalid and shall not be granted by the U.S. patent office.

[Chapter 10: Sec. 102. - Conditions for patentability; novelty and loss of right to patent

A person shall be entitled to a patent UNLESS -
(a)

the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent]

The next extract means that if ANY PART of the patent is found to be invalid, then it renders the WHOLE PATENT VOID and the patentee shall re-apply for a new patent including only the boundaries deemed to fall within the reach of their claim - i.e. if Acacia overstepped their bounds (and they appear to have overstepped it by a HUGE margin) then they must reapply for a new patent and pay the fees again. That patent will only be good for the correct bit AND the patent will only run its original course.

[Chapter 25: Sec. 251. - Reissue of defective patents

Whenever any patent is, through error without any deceptive intention, deemed wholly or partly inoperative or invalid, by reason of a defective specification or drawing, or by reason of the patentee claiming more or less than he had a right to claim in the patent, the Director shall, on the surrender of such patent and the payment of the fee required by law, reissue the patent for the invention disclosed in the original patent, and in accordance with a new and amended application, for the unexpired part of the term of the original patent. No new matter shall be introduced into the application for reissue. The Director may issue several reissued patents for distinct and separate parts of the thing patented, upon demand of the applicant, and upon payment of the required fee for a reissue for each of such reissued patents.

The provisions of this title relating to applications for patent shall be applicable to applications for reissue of a patent, except that application for reissue may be made and sworn to by the assignee of the entire interest if the application does not seek to enlarge the scope of the claims of the original patent.

No reissued patent shall be granted enlarging the scope of the claims of the original patent unless applied for within two years from the grant of the original patent.]

Having read that over, you would think that Acacia has no grounds to stand on, but having researched this more thoroughly, it is possible the result could go either way - EVEN if it was deemed that the technology was pre-existing prior to the patent being filed.

A trial that's worthy of note that could favor the adult industry was the trial MIT vs. Lockheed Martin Corp. for patent infringement regarding compression of digital audio for the use on the INMARSAT program in which MIT held patents for compression of digital audio for such uses. The judge ruled that no reasonable jury could find that Lockheed's operation infringed the MIT patent [despite the fact that it clearly did, it purchased the technology from DVSI - an MIT spinoff]. This suit is similar to the claims that Acacia is holding over the heads of webmasters in the U.S. so definitely worth researching if the patent is found to be valid (which I doubt it is).

Acacia is very likely to quote Eolas Technology vs. Microsoft where Microsoft contended that the patent be thrown out due to pre-existing technology when the patent was filed. In this case Eolas won the case, and Microsoft was forced to make changes to the way that it's internet browser invoked other applications. What makes this noteworth is that Microsoft had been using this technology for quite a few years before the patent was finally filed by Eolas Technology in 1998. Microsoft was ordered to pay $521m for patent infringement - appeal pending.

Hmmm.....

I can't speak for the other companies that have signed agreements with Acacia, but TopBucks would never try to force their webmasters to license in order to keep their TopBucks account open.

Every company and individual named in the suit has to come to their own conclusion about what to do. The agreement we signed, as is the case with many of the other licensees' agreements, covers our webmasters for the traffic they send and sales they generate through their TopBucks accounts. Obviously, anything those webmasters do that would constitute "contributory" violation of the patent (i.e. sending traffic to programs that have not licensed with Acacia) might still put them in harm's way where Acacia is concerned. But that is their own risk to take, and their own decision. We will not try to influence that decision, as that is not our place in any way shape or form.

I'm not a patent law attorney, or an expert on the technologies in question. Everyone who has been named/targeted in the lawsuit needs to consult with an attorney and come to the best decision given their own situation.

- Q.

Quentin will Topbucks continue to contribute to the Defense Group now that it has signed a license, or are you barred from doing that?

I can't go into detail about the specifics of the agreement we signed - but no, TopBucks cannot continue to contribute to the defense group.

- Q.

Did Top Bucks hand over their affiliates list?

If not, then how did Acacia know TB has 3,000 affiliates as printed in their press release?

I'd be curious to know.

But, groups like IMPA which are not acacia specific should be excempt from the "non anti-acacia" clause.



Fight the Nons!

Damn that sucks.
Still, thank you so much for your up-front honesty about the whole situation and not trying to bullshit us by putting a spin on it like so many other sponsors have done. Kudos for that.

according to Fight The Patent:

"The latest buzz is that Top Bucks settled with Acacia and they were part of the Defense Group and one of the founding members to IMPA...."

http://www.gofuckyourself.com/showth...hreadid=219869

Did their "settlement" include a list of customers?

No - TopBucks has handed over no information regarding our affiliates. They probably got that 3000 number from the marketing material on topbucks.com, and/or from one of our own past press releases on other topics.

- Q.

With Acacia's release of the names of sponsors that settled, they don't need to get affiliate lists (something that they wanted in the very beginning with early settlers).

My article: Acacia's Partners in Porn has the list:
http://www.fightthepatent.com/v2/PornPartners.html


Acacia has sent a new round of marketing emails (in the above article) where they do reference a specific URL on a person's site. They can now look at whatever banners you are running and cross-reference them to the list... if they find just 1 non-licensed sponsor, then that's where they can target you.

The point of the Acacia marketing email was to say to webmasters that if you only use the ones listed, then you would not be a target to them.. thus making Acacia a partner in porn.



Fight the Partnering!

You may be right about that - I'm going to defer to our lawyer on that issue.

- Q.

im sure topbucks have well more than 3k webmasters!

For those on the boycotting bus, keep in mind that with the exception of a few, the companies that settled aren't Acacia lovers.

No one likes to pay insurance in general, especially for "business insurance" that comes in the form of a patent license.

There are ways that companies can be a part of the fight for those that settled.. whether behind the scenes in financial contributions to the Defense Group, or publically in support of IMPA (if the contract does not exclude such associations).

IMPA members will be of companies that signed with Acacia and those that didn't...because IMPA's charter is looking after issues that affect all webmasters. There will be other patent cases and other business issues that affect webmasters.


Fight the GirlBedding!

That means that is not a standard contract.

My guess is still that big players get a contract where they don't pay anything. The big players names are just being used to force other "smaller" companies to settle.

Can you answar this: Is your contract cheaper than a stadart contract?

What I heard is that if you make above a certain point, your contract is different than those below.. .meaning different terms (not paying 2% of gross) and maybe some additional clauses (ie. refund of payments on invalidation, escrow, etc [rumours] or ones that were struck.

Some mainstream companies were able to strike out the "anti-acacia clause"...but the terms of the contract are still confidential.

Having a big name does give you weight in negotiations.. being lesser well known or stature means you get the standard contract.

A webmaster that licensed for $1,500/year got the standard contract.


Fight the Small Print!

Unless I dont read good I went to their site and read the agreements they all say 4% of the gross not 2.

You may be correct.. i am going off the "introductory rates" and i know they added some "adminstrative fees" that increase as each month goes along.

In anycase, 2 or 4% of Gross could equate to like 20-30% of Net for companies who have high payouts and high expenses.

Also, the 2% was a round number.. depending on how much you gross and where you fit in the tiering schedule, the percentages could be actually higher than 2%.

It's funny to see people who think that 2% of gross doesn't equate to alot of money.. so many business operating on small margins that 2 to 4 points off of gross is a major financial impact.


Fight the Spread!

Great, now I have to spend the day pulling the last of my Top Bucks links down. No biggie, never had much luck with them anyway.

fucking hypocrites.

you sure are singing a different tune now arnt you.

Best wishes to you Q and Topbucks for signing. I know how much effort you guys have put into fighting this battle.

WG

I don't know what the terms of the agreements that other companies signed, so I don't know if anyone is paying more or less than anyone else. I can tell you it was no "sweetheart" deal, and so far as I am aware, no one has signed a deal that would let them off the hook in terms of paying royalties.

- Q.

webmasters sometimes have short memories....

Look at Hustler.... they settled (being high profile)... later, they raised payouts to $100, and had some swanky parties... all is forgotten....business continues.


Fight the Memory Loss!

So if I download a video from your free content area and put it on my server and put advertising to one of topbucks' sites I can not be sued?

No! If you put the video on your site, then you need a license according to Acacia.

If you LINK to the video then it's OK



Fight the Freebies!

How is my "tune" here different? My posts still leave no doubt as to my position on this.

I never tried to piss with you Trey, but on the thread about you and your situation you definitely took a position of arrogance, anger and scoffing. Of course my tone was going to be slightly firmer with you in light of that.

I do not have a dog in this fight...but I do find all of this interesting.

I sold my adult business some time ago...to my manager/partner/friend. He is not a "big" player...more on the scale that quiet claims.

He received the Acacia packet and he and his attorney made the decision that if Acacia legally served them they would meet Acacia in court...and see how the "legal wind" is blowing and make a business decision at that time...to continue to fight in court or settle and sign. Thus far he has not been legally served.

I don't know if your company was legally served...or not...but what I do not understand is why...if your company was legally served...you would not have met Acacia in court...tested the "legal wind" and made a decision at that point in time.

Are my friend and his attorney "fools" for applying their strategy?Is their some information that they need to be made aware of?

yea what ever

I will stay out of this thread since topbucks is one of the few program that I have respect for.

I hope not everybody will sign with those fuckers damn

In my opinion, no on both counts. Pending the final decision/outcome of existing court cases (re: Acacia vs HomegrownVideo et al) I would put all discussion or contact with acacia on hold. If they took me to court I would try to have my own lawyer file a motion to postpone until the validity of the patent is decided via those cases.

It is too early for people to be caving and settling.

Don't be all mad at me honey. C'mon.... be happy. So we disagree on this one issue, big deal. Does that mean we should take out restraining orders?


Gimme a hug.

It's not quite that cut and dry, because there's still the issue of any other sponsors that you send traffic to, and/or any past "infringement" on your part.

If you are being sued by Acacia, speak to an attorney, and work with them to determine the best possible course of action given the details of your own situation. I'm not in a position to give any advice where beyond that where Acacia is concerned, nor should you accept any advice from anyone that is not an attorney. It is a complicated situation, and it calls for counsel from a real expert.

- Q.

You know as well as I do whether you admit it or not that when it finally cracks down if most of the major support against the patents caves then you guys are going to be the ones laying the smackdown on affiliates that aren't licensing.

After Acacia has "enough" adult entertainment people licensing, is there anything to stop them legally from requiring a minimum annual license royalty of say $250,000?

That would effectively weed out every small player in the industry and leave a HUGE piece of pie for the few remaining big boys to split up.


There are thousands of paysite operators providing adult content to the world now....

How much would you pay to be one of 50?




edit: I should clarify. I don't think there is anyone in here that wouldn't want to be one of those 50 "approved" providers.

It's easy to kick and scream when you know you can't afford it... but if you could - most of you would be clawing your way to that $250k table as fast as you can trying to get a seat before dinner is served

A scary point when you think about it... patent law gives a patent holder a monopoly on their patented invention.... you can stop people from using your invention or have them pay licenses to use it.

As we have seen with Acacia, interpreting a patent to be broader than what the patent reads, gives the advantage to the patent holder...to be tested only in a court of law for companies with deep enough pockets to come to the litigation table.

So yes, patents like Acacia could be used to weed out competition hence my previous post about the new definition of "industry leaders" are not ones looking out for the best of all webmasters including competitors, but more of one who has the market share of the pie.


If 80% of the market makes up 20% of the overal money pie, then those 80% need to band together in the face of competition, or become squeezed out.

Acacia is just the first issue that affects both large and small players.


This is the new Adult Biz. From my vantage point of 6 years observing/lurking .... times have definitely changed.


Fight the Evolution!

Amen brother - sad days when some 3 year law student wants to act like he knows anything.

Jimthefiend - get some real experience and then come back and talk to us - at the moment your a wannabe spouting a lot of BS

They will while webmasters continue to support them. Isn't your banner promoting a licensee?

Until we come together to fight this more will sign up to Acacia. Because they reckon if they give you a 100% revenue deal and a few drinks you will stick with them.

Stop sending traffic, take down their banners and ostrcise them, then they might think twice about it.

This is a BILLION dollar industry made up of a lot of small units, most of whom do not turn over $200,000 a year. So unless we come together and fund the defense we are fucked. Becasue companies like TopBucks will look at the situation.

THEY have to pay out the money to fight and if they sign they are unlikely to lose any business.

You come together or you get fucked, how simple is that?

A very good point, how many of these licenses are iron clad that they can be renewed at the previous rate, terms and conditions and do they cover SightSound and US Video's patent?

If they push it too far, there are Constitutional free speech issues that will have to be addressed.

If someone patented video and said that no black people or no Republicans could use video, then the government would step in and invalidate that patent. It would be over quickly.

What Acacia seems to claims to own is the right to all audio and video on the internet. That is a free speech issue and no patent can supercede the U.S. constitution. They can own some specific technology, but they cannot own the right to show all audio and video on the entire internet.

If someone wants to put up a political or art or some other video and Acacia says that they cannot put it up, then there are free speech issues.

Imagine if someone claimed the patent on "all writing on paper" and said that no one could write anything that was critical of Bill Clinton or anything that praised George W. Bush. How long do you think that patent would last? Not a second.

Beyond that, only a judge can decide how much money Acacia gets for their bogus patent. Acacia can demand ten million dollars from everyone, but only a judge or jury actually has the power to make anyone pay a penny.

It's very disappointing that more people aren't fighting on principle.

there are several people in this thread that have the right idea about this.


lemme 'splain it to you.


1. the VAST majority of webmasters make less than 100k/year, with the majority making less than 50k/year, not 500, but more like 40,000 small webmasters---all apparently "infringing" acacia bogus "DMT" patent.

2. trying to get this group together to fight anything is like trying to herd a bunch of cats.

3. IF you don't have that much to lose (which is the clear numerical majority of webmasters), you don't need to hire an expensive law firm to fight acacia. what you need to do is buy a cheap round-trip ticket to california, fill your briefcase with prior art, represent yourself in pro per, and demand a jury trial. that might cost you with motel bills maybe $1000 total. it will cost acacia to put their case before the jury maybe $5000-10,000.

this is how you break the back of this beast.

4. i don't give a shit, i won't give these people a dime, and if and when they sue me, they will go eyeball to eyeball with me personally in the court room, and i am not a fool in front of a jury---i have actually won cases like this where attorneys have told me to settle. i don't care if i win or lose, i will fight them.

5. and you all may laugh, but if a few hundred of the average webmasters had the same sentiment acacia wouldn't stand a chance.

Stock options prior to news release....?

If middle weight adult webmasters filed a suit claiming extortion against these guys and they did it in droves it would send Acacia into collapse.
This would all be over by now.

Acacia and its liscensees are now appearently drawing lines in the sand and without really saying it up front are urging affiliates to push sponsor's that have liscensed to by pass the threat of "Infringement".

Damages are going to be huge and the loss for non liscensee's will take a toll induced by webmasters that choose a side.

IF the claim is invalidated I do hope those business's that were effected by what is happening file claim for something along the lines unfair business practice.

This shit really sucks...

... well done TOPBUCKS, all the others will follow this year. time to load up some more shares.

This doesn't relate to Topbucks but I thought it was important to say this:

ACACIA says that as a foreign company your activities in U.S., such as selling products and services to U.S. customers, are still subject to U.S. patent laws. Therefore if you are a Canadian company (for example) and you host your sites in the USA, ACACIA will go after you.

Stupid question :

Their patent is in California, no? what if companies hosted outside of, and blocked all affiliates and surfers from CA?

???

The part about hosting might be true, so just host outside the USA. I do believe that the part about the having US customers subjects you to US laws is bs.

Everybody can move all there sites within 24-48 hours. I don't care where i am hosted.

I even can move my company in South Africa, in less than 30 days if i want and there Acacia don't have any patent.

Just made a offshore company, make a branch in the office you use now. Close your old company. Move your hosting to another country. Then Acacia got a little problem, becouse they now have to go after you by the law in South Africa.

But it is still cheaper to support IMPAI now.

As long as I can breathe this God given air provided to me, I can guarantee I will never roll over and sign any form of an agreement. I have been on the phone with Acacia and the jist of the conversation was fuck off and don't waste my time with your scare tactics and rhetoric. Come serve my ass!!

Acacia's DMT patent is filed in both the US and in 17 countries.

The way that they can get local jurisdiction (ie. Los Angeles, CA) is all they need to do is prove that atleast 1 person in California has access to a website that is infringing their patent.

That 1 person could be a person at Acacia who is viewing your website.. therefore.. Acacia has home court advantage.

If you have your servers outside of the US and you have US-based assets, then they can still come after you.

If you are in a country where they have filed a patent, they can come after you there.

If you live in Canada where they don't have a patent filed, I am under the belief that they can target you there as well. Many canadian webmasters received notices from Acacia, and i am sure they were aware they had sent marketing materials into Canada, so that gives some assumption that they can go into Canada.

Acacia is currently busy with the current 10 defendants and the recently filed 8 lawsuits (back in december).

I am guessing they won't be filing any more lawsuits, with the exception of trying to get their 2 class action lawsuits approved.

This is the calm before the storm.... and i am in the process of writing a Pre-Markman Hearing Primer article to get people up to speed as we approach the Feb 6th date.



Fight the Stay Tuned!