Written by

Brandon Shalton


It's Raining Court Summons!

For those not aware, Acacia Research has been sending out over 10,000 letters of a 'Final Notice' to all industries including schools and universities. The Final Notice is an attempt to put the "patent infringer" on notice to either pay a licensing fee or remove all instances of audio and video from the website.

One industry in particular was targeted by Acacia for being "low hanging fruit" (said Robert Berman, General Counsel for Acacia). This target is the Adult Industry. The Adult Industry has always been the early adopters of technology, so it's no surprise they are one of the first targets. Technology and Patents aren't limited to the Adult Industry, but are fertile grounds for exploitation.

While Acacia claims they have not targeted the Adult Industry specifically, it's pretty clear when you look at their website that they are.

Acacia is requiring porn webmasters to pay a licensing fee based on GROSS revenue for their patent claims of owning the process of downloading/streaming audio/video files from a (web) server.

Many webmasters outside of the US are wondering if this Acacia patent applies to them, and the answer is yes.

You can read about Acacia's DMT patent at their website and at the USPTO.

While many big name Adult Industry companies like Hustler have licensed the patent, many other adult companies are fighting back. The founding members to IMPAI (an Adult Industry trade organization) are waiting for their first day in court, tentatively set for Feb.

Acacia has given the Adult Industry until November 30th to take advantage of its "introductory licensing" by signing before the "amnesty date". They will "forgive" prior infringements by paying a fee based on GROSS revenue, and then another licensing payment starting 1/1/2004 for the next year. For websites that make less than $50K per year, that translates into paying $1,500 before Nov. 30th and $1,500 starting on 1/1/2004.

Acacia started by sending out "information packets" back in October 2002 that asked companies to contact them about their claimed infringement. They followed up with "Final Notice" letters to over 10,000 websites. After the Junk Mail campaign, they started the Spam Campaign by emailing a PDF version of the "Final Notice" letters (many people received these letters and are not even webmasters or have any infringements. The letters and emails also did not specifically state which websites were infringing, and were just templates merged with a mailing list).

It's very questionable whether these types of notices constitute as providing notice of infringement since no specific websites were listed and no guarantee that the recipient actually received the letter or email (Acacia has been using mailing lists that contain old addresses and emails from some companies)

After November 30th, Acacia's next steps should be to file additional lawsuits in order to "convince" companies to settle now, or be sued and having to finance the burden of court costs.

Acacia did not anticipate that Adult companies would put up a fight once big names like Hustler had settled. There are 11 defendants waiting for their day in court to present prior art evidence, like the ones that FightThePatent and a bunch of volunteer searches had found.

With a "mountain" of evidence, we know that if the "patent claims don't stick, then you must acquit" (we believe in the Johnny Cochrane Spaghetti test).

Acacia is not the only company with broad patent claims and implications. SightSound and USA Video are two additional companies that should be of concern and are tracked on this page.

If it starts to rain court sermons starting in December, Adult webmasters can find an umbrella by joining the Defense Group (11 companies that have pooled their financial resources together for a common defense). It's an expensive umbrella to share, but cheaper than buying your own. You can learn more by contacting Spike (spike at HomeGrownVideo.com).

For those that don't have the money to fight, you won't have many other options. ACLU handles constitutional issues. EFF.org is busy with other computer related issues, and my efforts to start Fight the Patent Foundation has fallen on apathetic eyes and ears.

For those that can't afford to license, you can join the IMPA to atleast join other concerned webmasters to show unity against patent abuse cases. The other choice is to do nothing which is like hiding your head in the sand.... it will keep the rain drops from getting your head wet.


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