Dealing With Acacia

Reinhard Heydrich

I haven’t been served with the infamous “Acacia Packet” – nor have I even seen it; but given all of the rants and raves I’ve read on the various Webmaster message boards, a few things have occurred to me, which I would like to share with you all.

Patent enforcement and licensing is as old as the patent process itself, and a necessary element in what we call “progress” – for without the protection of valuable intellectual property that legitimate patents provide, there would be very little incentive for businesses to innovate and develop brand new products and technologies. After all, it’s a lot easier to copy and duplicate than to invent and pioneer.

That being said, those who are affected by Acacia’s patent claims should not approach the situation from the perspective that “patents and patent holders are bad” – but from a more reasonable “prove your claim” attitude, forcing the claimant to defend his assertion. If the claimant has a legitimate claim and can prove it, then by all means accept the best licensing agreement that you can negotiate – since they are entitled to compensation for the use of their intellectual property.

Of course, many of the more vocal people in this debate seem to feel that they are entitled to the free use of other people’s innovations without any regard to the fact that it is those innovations that make their business possible. I suspect that these ‘free for all’ types are the same folks who steal content, code, and bandwidth.

The Tip of the Iceberg
Acacia is not the first, nor will they be the last corporate entity to pursue licensing of apparently ‘existing’ technology in the face of resistance by those who deny their claim. I have never personally understood how any technology in question ‘existed’ without having been developed by ‘someone,’ but then again, many of these arguments tend to be irrational.

Leaving that aside, it’s important to realize that these battles have already been fought over items like “.gifs” framesets, and other “common” Internet-based technologies, while the battles over “shopping carts,” online transactions, and even hyper linking and “.jpegs” are still being waged.

What differentiates the Acacia debate from most of these is the pursuit of individual users in an attempt to build a so-called “war chest” of accumulated licensing fees extorted from those who were unable to afford litigation (rather than signing a licensing agreement based upon a belief in the validity of Acacia’s claim) – for the assumed future pursuit of “major players” who could afford to litigate the validity of Acacia’s claim.

A Viable Strategy?
The best defense is a good offense, and with that in mind, why not attempt to hasten Acacia’s schedule by involving the “major players” now? Consider the wave of successful litigation against tobacco companies by long-term smokers. Despite the fact that for many years everyone has known that cigarettes kill, and the decades of federally mandated warning labels placed on packs of ‘coffin nails’ alerting users to the hazards involved in the personal choices they made, juries have found in favor of cancer victims who blamed the tobacco companies for their ailments. While I feel these court victories are ridiculous – since the smokers were warned and should have known better – could victories over Acacia run a similar course?

Consider Microsoft’s End User Licensing Agreement (EULA). No, I haven’t read the whole damn thing – like nearly all users, I merely clicked “ok” so that I could install the software I purchased. I have to wonder if it says somewhere in there that “We don’t own what we’re selling to you, and if the real owners want you to pay to use it, that’s your problem – not ours!”

I mention this because Microsoft not only provided me with the Windows Media Player, but the Encoding and production tools necessary to create compressed video clips, the media server required to distribute them online, plus the step-by-step “how to” directions as well as ample encouragement to do so. And nowhere in all of this could I find mention that “By the way, if you were to actually use these products as designed and recommended, you will be required to pay Acacia thousands of dollars in licensing fees…”

While I am not an attorney, it seems that by not alerting me to the potential claims of damages by a third party resulting from the use of a product they sold me, that Microsoft bears the real responsibility of any infringement upon Acacia’s claimed patents. Since Acacia has been willing to pursue affiliates for what they term “contributory infringement,” shouldn’t Microsoft (and others) be involved as well? Couldn’t someone targeted by Acacia file suit against Microsoft (and others) in order to recover the costs of patent litigation?

It seems to me that compelling the involvement of those large companies who enabled and encouraged our “patent infringement” in our defense against these claims is not only a necessity – but a legal possibility. With the addition of the ‘deep pockets’ that this heavyweight muscle could provide, perhaps the Acacia issue could be laid to rest, and a discouragement provided for similar claimants waiting in the wings…

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