My Patent Research for TGP Owners

[Kingfish]

My Patent Research for TGP Owners


All right I did a little research tonight on Patent law as it apples to people that link to hosted movie galleries.


Here is what I believe is the relevant law.
http://www4.law.cornell.edu/uscode/35/271.html

Sec. 271. - Infringement of patent
1. (a)
Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.
(b)
Whoever actively induces infringement of a patent shall be liable as an infringer.
(c)
Whoever offers to sell or sells within the United States or imports into the United States a component of a patented machine, manufacture, combination or composition, or a material or apparatus for use in practicing a patented process, constituting a material part of the invention, knowing the same to be especially made or especially adapted for use in an infringement of such patent, and not a staple article or commodity of commerce suitable for substantial noninfringing use, shall be liable as a contributory infringer.
[/b]

In the context of linking to other people?s hosted galleries we are talking about part (b)

Now the following analysis is from this site:
http://www.biojudiciary.org/subpage1.asp?tid=153

To prove inducement-type infringement under 35 U.S.C. § 271(b), there must first be an inducement to engage in certain conduct and, secondly, the conduct being induced must constitute direct infringement. That is, there is no inducement to infringe under 35 U.S.C. § 271(b) in the absence of a resulting direct infringement. Furthermore, although direct infringement under 35 U.S.C. § 271(a) must occur within the borders of the U.S., the inducement to commit such direct infringement may occur overseas as well.
1. The test for induced infringement under § 271(b) is whether there was active aiding and abetting of another's direct infringement. Additionally, the inducer must specifically have intended to induce infringement. The following acts are widely considered to be acts of induced infringement - designing a product to infringe a patent, providing a direct infringer instructions on how to use a patented process or how to design an infringing product; product advertising, solicitation, and product instruction; and licensing, where the licensor provides instructions, plans, or the like, enabling the licensee to practice the patented product or process; assisting a direct infringer to make the product; preparing consumer use instructions; and exerting control over a direct infringer's manufacture of the infringing product. Control over another's manufacturing has been found when the inducing party grants an exclusive license to manufacture and sell the infringing product with the requirement that construction of the product be approved by the licensor.

Now I bolded the parts that I thought were most relevant to our discussion. In looking at this stuff what seems to be muddy to me is that the sponsor is the one offering the inducement (the hosted gallery) for his (assuming for a moment that patent is valid) direct infringement. What IMO needs to be confirmed is:

A. Who is the infringer? A simplistic question if the Sponsor is the infringer people using the hosted galleries appear to be safer.

B. Would the mere linking to a hosted gallery be seen as inducing by a court the direct infringer (the sponsor) in his/her infringement?


Just my

[Jon Levi]

So far as the law goes, precident has already been set that states it doesnt break any laws (civil or criminal) by only LINKING to a url

[Kingfish]

Originally posted by Jon Levi
So far as the law goes, precident has already been set that states it doesnt break any laws (civil or criminal) by only LINKING to a url

Do you have a citation to that precedent? In what context was that precedent set? These two questions would have to be answered in order to make a determination if that precedent has any value in this context.

[Choker]

Originally posted by Jon Levi
So far as the law goes, precident has already been set that states it doesnt break any laws (civil or criminal) by only LINKING to a url

But where is that decision at? If I understand correctly, there would be a conflict between two courts if this is true. This would be the pebble that killed the giant. Acacia would have to get that ruling overturned in order to pursue this further. Not likely to happen.

[Stud Money]

I just ran a quick Google search and got this if it is any help...

http://www.wired.com/news/politics/0,1283,35306,00.html

[Stud Money]

I think this part would be the most helpful of that piece...

"Hyperlinking does not itself involve a violation of the Copyright Act," Hupp said in his ruling. "There is no deception in what is happening. This is analogous to using a library's card index to get reference to particular items, albeit faster and more efficiently."

Would seems to me if it cant be in violation of a copyright by linking that it would also be said the same for Patents no?

[Kingfish]

Originally posted by Stud Money
I think this part would be the most helpful of that piece...



Would seems to me if it cant be in violation of a copyright by linking that it would also be said the same for Patents no?

Reading that story tells me the context of that case wouldn?t be that helpful to us. That issue didn?t deal with patent infringement. There was no relationship between the person doing the linking and the site being linked to in fact they objected to it. In this case the allegation is more or less that the linker is aiding the infringer in a scheme the deprives a patent owner of his rights.

[Oedipus]

I believe that another issue that needs to be researched concerns Acacia's attempt to get 3 bites out of the same apple. They are trying to collect licensing fees from (1) the content provider, (2) the owners of websites, and (3) website affiliates.

Also, I would imagine that there would be a cause of action by an affiliate against a sponsor who continued to operate in alleged violation of the Acacia patents and who did not disclose this fact to its affiliates.

[Stud Money]

Its a matter of linking period.

I have no relation with my sponsor other than i LINK to their site, therefore the decision made by that judge could still be argued to be true in the case of TGP owners not having any relation to the webmasters whose galleries they display.

Its just a form of direct deep linking

[Choker]

Originally posted by Kingfish


Reading that story tells me the context of that case wouldn?t be that helpful to us. That issue didn?t deal with patent infringement. There was no relationship between the person doing the linking and the site being linked to in fact they objected to it. In this case the allegation is more or less that the linker is aiding the infringer in a scheme the deprives a patent owner of his rights.

Yes but does the patent holder have the legal right to double dip? If the sponsor is paying the license fees, why should sites that link to that sponsor also have to pay them?

[JDog]

Originally posted by Oedipus
I believe that another issue that needs to be researched concerns Acacia's attempt to get 3 bites out of the same apple. They are trying to collect licensing fees from (1) the content provider, (2) the owners of websites, and (3) website affiliates.

Also, I would imagine that there would be a cause of action by an affiliate against a sponsor who continued to operate in alleged violation of the Acacia patents and who did not disclose this fact to its affiliates.

It's kindof like the same fucked up thing with taxes. Every dollar is taxed three times!

jDoG

[Kingfish]

Originally posted by Oedipus
I believe that another issue that needs to be researched concerns Acacia's attempt to get 3 bites out of the same apple. They are trying to collect licensing fees from (1) the content provider, (2) the owners of websites, and (3) website affiliates.

Also, I would imagine that there would be a cause of action by an affiliate against a sponsor who continued to operate in alleged violation of the Acacia patents and who did not disclose this fact to its affiliates.

Well that is a different issue, but off the top of my head I would say the reason they are going after the affiliates now is that not enough of the pay sites have settled. This is more than likely a tactic to get the affiliates to put pressure on their sponsors to reach an agreement so we affiliates aren?t hung out to dry.

I think the duty would be on the affiliate to inquire of his or her sponsors if they have settled. If the analysis I have started is confirmed by my own further research, or maybe an attorney choker hires that is what the prudent affiliate would do.

[Kingfish]

Originally posted by Choker

Yes but does the patent holder have the legal right to double dip? If the sponsor is paying the license fees, why should sites that link to that sponsor also have to pay them?

I think I started answering that in the last post, but I think if your going to do the TGP group you need to focus on the specific issues that apply to TGPs. If they haven?t settled with every sponsor you link to they haven?t double or triple dipped yet. Of course you could legally promote IMO a sponsor?s hosted galleries that has reached an agreement.

[Bladewire]

Originally posted by Stud Money
Its a matter of linking period.

I have no relation with my sponsor other than i LINK to their site, therefore the decision made by that judge could still be argued to be true in the case of TGP owners not having any relation to the webmasters whose galleries they display.

Its just a form of direct deep linking

You have no relationship with a sponsor? THEY PAY YOU!

[Stud Money]

Originally posted by Squirtit


You have no relationship with a sponsor? THEY PAY YOU!

Umm...

No they dont, my payroll dept. pays me

We provide them with a service, sending them traffic.

[woj]

It's not just linking, it's linking with an intent to sell a patented product. Everyone is getting paid for this linking, so in effect they are marketing infringing products.

[Fuckin Bill]

As far as TGP's are concerned, there's also room to hide under precendents already set for search engines and news groups. Technically, if we were infringing on anything by providing a link, so is google.

We provide a directory, just as google or any newgroup server does.

This is how password sites survive. While most people don't like them and call them "illegal", they are in fact legal under US law because of these precedents.

[reynold]

At least the thun seems to be 'legal'

;)