Newsgroups: sci.crypt
Subject: Re: PKP/RSA comments on PGP legality
From: a_rubin@dsg4.dse.beckman.com (Arthur Rubin)
Date: 17 Dec 92 17:55:02 GMT
Organization: Beckman Instruments, Inc.

In <1992Dec17.150409.17696@news.columbia.edu> em21@cunixf.cc.columbia.edu (Eben Moglen) writes:

>I have been following with interest, and distress, the conversation
>about legal risks in using PGP set off by Carl Ellison's posting of
>a document said to reflect the legal position of PKP.  Perhaps a
>Columbia Law professor's views on these questions may be helpful.  I'm
>going to discuss the realities of the situation, without jargon,
>rather than the legal technicalities.  Those who want to discuss the
>legal detail should feel free to contact me, but for legal advice I
>usually get paid.

>PKP says that any user of PGP is "inducing" infringement.  Here's the
>reality of the situation.  PKP is the licensee of a presumptively
>valid US patent, which it claims PGP 2.1 infringes.  If the patent is
>valid, and PGP infringes, every user is not just inducing
>infringement--he/she/it is infringing the patent.  This is not a
>crime; it's a civil wrong, for which, as the PKP statement says,
>damages are available at law.  But this is true every time a
>manufacturer sells or distributes an infringing article.  As you may
>recall, for example, an inventor recently won an enormous damages
>judgment against a major US auto company for infringing his patent for
>intermittent windshield wipers.  Theoretically, under the patent law,
>he could instead have notified all Ford buyers in the past decade that
>they were personally infringing his patent.  But it is grossly
>impracticable to do that, and a suit against the manufacturer
>accomplishes exactly the same result, since the total amount of the
>damages available is the same either way, while the litigation cost is
>not.  PKP can test the validity of its patent and recover its damages,
>if any, in a suit against the developers and distributors of PGP, if
>it cares to.  Without any knowledge of their thinking, I predict the
>partners won't want to do that.  It would be expensive, the damages to
>be recovered would be slight or none, and they would risk having the
>only patent anywhere in the world protecting their technology declared
>invalid.  But in any event, it is virtually unheard-of to sue
>individual end-use consumers of allegedly infringing technology.  If
>PKP's investors had $100 million or so they wanted to waste in
>litigation anything could happen, but they don't, and it won't.

Not quite complete.  (Paraphrasing the comments of another practicing
patent attorney on CompuServe.)  If PGP has a non-infringing use, and the
developers and distributors recommend only that use (in the US), then PKP
would have to go after the end users, or after third parties (such as
myself, actually) who recommend using it, for contributory infringement. 
(This assumes the letter or lawsuit has the purpose of getting legal
damages, as opposed to just making threats.)
--
Arthur L. Rubin: a_rubin@dsg4.dse.beckman.com (work) Beckman Instruments/Brea
216-5888@mcimail.com 70707.453@compuserve.com arthur@pnet01.cts.com (personal)
My opinions are my own, and do not represent those of my employer.
My interaction with our news system is unstable; please mail anything important.
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