That means the IETF and the Chair's role itself can be sued for
this. I suggest you folks investigate this and rethink the IPR rules
because this makes ISOC criminally liable for this action as a RICO
claim one would think.
Folks- there is a fundamental legal breakdown with two key issues -
the first is PATENTS and the IETF's Liability and the other is the
abuse of the RESEARCH EXEMPTION which will not apply to anyone
outside of the IETF workflow republishing anything from these
mailing lists.
How this all boils down is that we have been lied to by many here
who apparently want us to be legally accountable for patent and
copyright damages - or they want to destroy those global IP
protection schemes generally in what I call the "The world owns it
because I wont pay for the fact I stole it" mindset.
The legal precedents are simple and show how incompetent the IPR WG
has been in designing practices which intentionally break the law
this content from the Ninth Circuit District Court's Jury
Instructions book is excerpted. This then, if there is a
liability, is most likely what your sponsors are in fact liable
for.
---
In the area of patent
and copyright infringement, there is some authority for
submitting the issue of willfulness to the jury. See, e.g., Shiley, Inc. v.
Bentley Lab., 794
F.2d 1561, 1568 (Fed. Cir.1986) (applying 35 U.S.C. § 284), cert. denied, 479 U.S. 1087 (1987).
“Willful infringement carries a
connotation of deliberate intent to deceive. Courts generally
apply forceful labels such as ‘deliberate,’ ‘false,’
‘misleading,’ or ‘fraudulent’ to conduct that meets this
standard.”
Lindy Pen Co. v. Bic Pen Corp., 982 F.2d 1400, 1406 (9th Cir.1993) (also citing
cases in other circuits regarding elements of a willfulness
claim). See
also Committee for Idaho’s High Desert, Inc., v. Yost,
92 F.3d 814, 825 (9th Cir.1996) (the term “exceptional” in 15
U.S.C. § 1117(a) for purposes of imposing treble damages,
generally means the infringement was “malicious, fraudulent,
deliberate or willful”) (citing Lindy Pen Co., 928 F.2d at 1408); Nintendo of America, Inc. v. Dragon Pacific
Int’l, 40 F.3d
1007, 1010 (9th Cir.1994) (where defendant willfully infringes
trademark, trebling the damages is appropriate);VMG Enters. v. F. Quesada
& Franco, Inc.,
788 F. Supp. 648, 662 (D. Puerto Rico 1992) (treble damages
granted when defendant’s infringing actions are deemed to have
been made “knowingly and willfully”); Polo Fashions v. Rabanne, 661 F. Supp. 89, 98 (S.D. Fla.1986)
(in absence of extenuating circumstances, profits are to be
trebled where counterfeiting is intentional and knowing).
Regarding willful blindness, see Hard Rock Café Licensing Corp. v.
Concession Servs.,
955 F.2d 1143, 1149 (7th Cir.1992) (to be willfully blind, a
person must suspect wrongdoing and deliberately fail to
investigate); Chanel,
Inc. v. Italian Activewear of Florida, 931 F.2d 1472, 1476 (11th Cir.1991)
(willful blindness could provide requisite intent or bad faith;
determination of willful blindness depends on the circumstances
and will generally be a question of fact for the factfinder
after trial).
A court may enter judgment for a
damage award under 15 U.S.C. § 1117(a) upon a finding of
willfulness as well. See Sealy, Inc. v. Easy Living, Inc., 743 F.2d 1378, 1384 (9th Cir.1984)
(district court found that conduct constituted willful and
deliberate bad faith infringement of plaintiff’s trademarks that
was intended to and in fact did result in deception of the
public); Friend
v. H.A. Friend & Co., 416 F.2d 526, 534 (9th Cir.1969) (defendant’s acts must
be willful and calculated to trade upon the plaintiff’s
goodwill). See
also Horphag Research Ltd. v. Pellegrini, 337 F.3d 1036, 1042 (9th Cir.2003)
(“Exceptional cases include cases in which the infringement is
malicious, fraudulent, deliberate, or willful) and Gracie
v. Gracie, 217 F.3d
1060, 1068 (9th Cir.2000).
---
What this finally reduces to is that we need a NEW PATENT AND IP
POLICY and since all specific IETF Standards efforts come with code
to implement and allow testing of the protocol in question, it is in
fact a direct infringement. While the IETF is protected from these
issues in publishing the documents - its members are not. And the
IETF's copyright exemptions under section 107 clearly do not apply
to parties publishing that information as part of their commercial
offerings years later after all of that research is completed...
Sorry but reality is what it is.
Todd Glassey
--
Todd S. Glassey
This is from my personal email account and any materials from this account come with personal disclaimers.
Further I OPT OUT of any and all commercial emailings.
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