[linux-audio-dev] Gigasampler vs Halion PR war

Mark Knecht mknecht at controlnet.com
Mon Nov 11 18:09:01 UTC 2002

-----Original Message-----
From: linux-audio-dev-admin at music.columbia.edu
[mailto:linux-audio-dev-admin at music.columbia.edu]On Behalf Of Simon
Sent: Monday, November 11, 2002 11:26 AM
To: linux-audio-dev at music.columbia.edu
Subject: Re: [linux-audio-dev] Gigasampler vs Halion PR war

Does a patent get stronger if you're actually earning money from it?

Simon Jenkins
(Bristol, UK)

   Yes, sort of, but it is not required that you earn money immediately.
When you earn money from a patent you establish the value of the patent.
Should you then discover someone infringing on it, your monetary
entitlements in court are better defined. There are also issues, in some
cases, about 'shipping' a product that has patented property in it to
establish your ownership.

   Also pertinent to the discussion, it is my understanding (and likely not
to be a popular one here I think) that if you were going to work on a piece
of software for the purpose of making money then you must license the patent
BEFORE beginning work or you are, at least in the US, potentially subject to
legal prosecution should the holder of the patent discover what you are
doing. I have run into this issue a number of times in my career when
starting technical projects. We always do some sort of assessment of the
risks in this area.

   Interestingly, my understanding of US patent law says that if you do NOT
intend to make money from your work, now or at anytime in the future, then
you are allowed to develop things that infringe on patents as a private
individual for the purpose of your own education. This is obviously an
interesting area as many open-source programmers fit this model, and as I
understand it again, precisely why the software that broke the DVD code
scared the US entertainment industry so much. Our Legislative Branch then
fell prey to US business interests and created law specifically to address
these issues with respect to digitally formatted property. Even though it
might have been 'legally legal' at the time, many people believed it was not
'morally legal' to copy and distribute copyrighted material even when there
was no intention to make money.

   I basically agree with that position, but am terribly disappointed that
there is (currently) no provision for making your own backup copies of
copyrighted material. That is a real mistake and I think it will fall in the
next few years.

   In the spirit of full disclosure, I am not a lawyer, am a multiple patent
holder in the US and Japan (not sure about the EU) and am only speaking from
experience. My opinions are my own and do not represent any form of legal


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