Written by Brandon Shalton


A Patent on 'No Comment'

For those following the Acacia Saga, you know that the "amnesty date" of November 30th came and went. Towards the middle of December, Acacia released a Press Release stating they had signed a total of 108 licenses along with filing 8 new lawsuits in the Adult Industry.

A week later, Acacia released a PR about 24/7 University:

Dec. 22, 2003--Acacia Research Corporation (Nasdaq: ACTG; CBMX) announced today that its Acacia Technologies group has entered into a License Agreement for its Digital Media Transmission ("DMT") technology with 24/7 University, Inc.

The license to 24/7 University is Acacia's first licensing agreement for its DMT technology with a company in the e-learning sector. 24/7 University offers courses containing audio/video content to corporate customers. The e-learning sector includes both for-profit companies and non-profit institutions which provide online courses for education and training.

I called the CEO of the company and his story underscored the point that businesses are faced with making business decisions and the decision to fight the patent claims is grossly skewed over the cost of licensing.

In my conversation, he mentioned that he did do his research, he has been reading the message boards and articles (and my website), but the issue of the patent's validity is not the major issue for him. The major issue is what's the best decision for his business (ie. could he afford to fight).

24/7 University uses the Real Networks platform to handle the streaming of their learning videos. I asked him if Real was there to support him and his response was no.

Through our discussion, the phrase "it was a business decision" came up as an explanation for the signing of the license.

This phrase resonated within my head, as I had heard it many times before in talking with companies who licensed and those that released statements (Hustler) about their decision to license.

It seems the phrase "it was a business decision" is the current replacement for the phrase "no comment". With the utterance of this phrase, the inquisition of why a company would settle is squashed.

While much of the news that is reported has been about the problem, the Patent Panel at Internext seeks to find some solutions.

At Internext, on Jan 5th (Monday) at 4pm is the Patent Panel with Spike Goldberg, Greg Clayman, and myself.

The topic is to talk about how patents affect the Adult Industry and how to deal with them.

On one hand, you have the point that the industry should unite together, to form a common defense. Banding together can help to reduce the financial expenses of a lawsuit, as well as helping to take a stand (ie. Defense Fund/Defense Group/IMPA).

The threats of patent lawsuits are not limited to Acacia, and may very well see adult industry players having their own patent lawsuits.

On the other side, you have the other point that businesses will react and do what is in their best interest. Should it mean paying the license, it's their business decision to do so.

The fundamental issue for the patent panel and even in this discussion between the two points, is really, do webmasters even care to band together? Or will they all act as an island unto themselves and do what's best for them individually?

When you are faced with a company that has deeper pockets and a litigious agenda, it is very intimidating and daunting for a smaller company to be able to fight.

It is a grave abuse of patent and civil law when an entity can literally roll-over a company because they don't have the ability to fight.

Maybe those with deeper pockets could afford to pay a license, but for the vast majority that don't, what are their options?

The ACLU and EFF were formed to help the little guy fight against injustice and this is why I proposed Fight the Patent Foundation. Unfortunately, the level of support has not been there for my non-profit organization idea which gives an informal conclusion that webmasters will just deal with these stifling issues on their own.

The current 11 defendants Feb 6th court day is certainly promising, and many are sitting on the sidelines waiting for that day, but as you have read in message boards and in articles, Acacia has added more lawsuits, and have proposed 2 class action lawsuits.

The entire Adult Industry will be adversely affected if the judge grants the class action status where Acacia seeks to have Private Media and Adult Check lead up the class action.

Acacia has always claimed that they have not singled out the Adult Industry, and someone had to be the first to be targeted. The concept of including all Adult Industry companies into a class action is quite odd, because the use of audio/video on a website is not limited to adult content. Seems like a class action over all websites that have audio/video should have been done, not specifically targeting one industry.

Knowing that EVERY adult company is involved now, won't necessarily make companies rally together. It's just like public radio and PBS, many will watch/listen for free while others contribute to the funding.

With the large attendance of webmasters at Internext, I hope all webmasters will jam pack the Patent Panel to listen to what the panelists have to say, to listen to what your fellow webmasters have to say, and to voice your own thoughts and opinions about how companies will react to patent issues.

I also hope some media companies really look at how REAL companies are being hit with the patent claims.

Software companies should be looking at this problem under a MICROscope where companies that use their SOFTware are being targeted for patent infringement.

I hope that this really disturbing issue will be addressed by really big companies to support companies that use their products. For now, articles such as this gives you a window into the problems that lurk inside. Will it take an apple to fall on companies heads before they see how serious this problem is?

For companies that use multiple platforms for delivering audio/video, wouldn't you switch to a company that was there to support you?

As for me, two phrases you won't hear me saying, "it was a business decision" and "no comment".

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copyright 2003, FightThePatent.com