LWN: Comments on "321 Studios and the free software community"

patent/trade secret contradiction

giraffedata — Sat, 21 Feb 2004 22:56:34 +0000

It's even simpler than that.

Applying for a patent does not require disclosing anything. Patent applications are quite secret. It's getting a patent that requires the disclosure to the public. (The disclosure isn't just a prerequisite, it's the whole purpose of the patent).

As long as the patent is pending, the invention is a trade secret. If the patent never issues, it is a trade secret forever.

Sklyarov and Free Software

gleef — Thu, 19 Feb 2004 21:01:03 +0000

This company has been fighting many of the same digital rights battles as the free software community. But there has been no big outpouring of support for 321 studios; for the most part, its battles have been ignored. 321 Studios has not been able to obtain the same level of interest and support as, say, Elcomsoft has. One might point out that 321 Studios is a proprietary software company; that is true, but so is Elcomsoft. The real answer, perhaps, is that the community has sensed that 321 Studios does not really share its values; 321 appears to have little interest in any issues beyond immediate sales of DVD copying software.

I disagree, there wasn't really a huge outpouring of support for Elcomsoft. There was a huge outpouring of support for Dmitry Sklyarov, and Elcomsoft benefited from some spillover. There was support for Sklyarov because he was a programmer, and a foreign national, who was horribly mistreated by the US Government and Adobe. Many of us could easily see ourselves or our friends in Sklyarov's position. Once Sklyarov was safely home and out of legal jeopardy, most of the active support faded away to mild interest.

If a company is selling it's stuff under a proprietary license, and someone challenges their software, it's their software, their business. Even if we have a goal in common (eg. getting rid of software patents), it's tough to get worked up for a company getting sued over their stuff.

On the other hand, if a company is sharing (and selling) stuff under a Free License, and someone challenges their software, it's our software too. It's easy to get worked up when someone is challenging our stuff, and the vast majority of the Free Software community has no problem if a friendly business gets helped in the process of us defending our stuff.

True, companies like Elcomsoft and 321 Studios might make appropriate temporary allies towards certain goals, and it's probably politically naive to not help them when they are fighting for goals that match ours. On the other hand, we have enough issues to deal with without going hunting for other people's problems, even if helping them would help us somewhat.

321 Studios and the free software community

pkturner — Thu, 19 Feb 2004 18:43:14 +0000

Filing trade secret suits while having already disclosed the relevant technology would be, at the least, an act of bad faith.

Without considering the particulars of DeCSS, it might be judged to be based in part on trade secrets, and in another part on ideas that have been submitted for patents. A contradiction is not necessary.

321 Studios and the free software community

gswoods — Thu, 19 Feb 2004 16:44:01 +0000

I think the main difference between the Elcomsoft case and the 321 case is that nobody from 321 has been thrown in the slammer. I doubt many people would have cared much about the Elcomsoft case either if Sklyarov hadn't been arrested.

321 Studios and the free software community

brouhaha — Thu, 19 Feb 2004 08:55:13 +0000

321 Studios is also being sued by Macrovision, which is also claiming patent infringement along with DMCA violations. 321 has just filed a response pointing out that, among other things, Macrovision's patents cover an analog copy-protection mechanism which is not relevant to a digital copying program.

Without researching it further, but based on a past professional experience with how the Macrovision corporation does things as well as a personal experience, I can make an educated guess.

Macrovision licenses DVD players, satellite receivers, PVRs, etc. to incorporate circuitry that generates the copy protection signal only when the content indicates that the protection should be enabled. Generally they do not charge a per-unit fee for these hardware licenses. Macrovision sells the content providers licenses to set the protection bit in the content.

Macrovision asserts that setting the protection bit in the content without buying a license from them infringes their patents.

Personally, I'm somewhat skeptical that by simply writing a few bits in a different state on a DVD-R medium, that I've violated their patents. The DVD-R medium is not capable of generating the Macrovision signal, that is a function of the player. And the player is licensed for the patent. Therefore it seems to me that under the doctrine of first sale, the owner of the player has the right to play any media on it which may or may not cause it to output a Macrovision-encoded signal, without the need for the medium to also be licensed. But IANAL, and I have no idea how a court would view this.

Anyhow, in the matter at hand, I suspect that Macrovision probably is asserting that 321's software produces media with the Macrovision enable bit set, but without paying Macrovision for a patent license.