Re: Unencumbered Checking (was Re: DEPLOY: SPF/Sender ID support in Courier)
2004-09-03 02:24:12
Anne P. Mitchell, Esq. wrote:
But real people in the real world have to make decisions and they
have to go forward. One of the problems I have with lawyers - and my
wife is one, is that of course life comes with no guarantees. But in the
end one must do something. A lawyer can tell you what the potential
worst case scenario is, they can help you get out of the trouble that
you are in, but it is extremely rare that you can get one to tell you
what your best choice is - aside from do nothing, when there are no
perfect choices.
It does not matter whether it is Microsoft or HP, or a patent
holding company. There is a claim without any support that the current
draft includes IP that would require a license.
The details of the license does not become relevant until you decide
whether the claim has merit. The burden for testing the claim is very
low. I do not think it is wise to try and become IP lawyers over this,
but the burden is not non-existent. Because "we say so" is just not
sufficient.. The fact that the claim is nebulous and unknown does not
make it stronger. It makes it weaker.
The unknown may be a scary place to be, but it is where we are. It
is also not far from where we would be if Microsoft had not made a
nebulous claim of IP rights.
This brings up a point which has been rolling around in the back of my
head for a few days.
We simply _don't_ know what is in the claim. In any other area where
adoption of some program is to be impacted or encumbered in some way
which could cause either a legal liability or an inability to actually
implement on the part of the adopter - particularly such a potentially
widely used program - it is inconceivable that people would be even
considering adopting, or recommending, the program. In fact, if one
had a professional license, and recommended adoption of such a program
without a clear understanding of the encumberance, one could be guilty
of malpractice. But I digress...what has been rolling around in the
back of my head is this:
Can anyone say with 100% certainty that there is *zero* technology,
software, or process, which can be reasonably argued by Microsoft to
belong to them, with regards to *checking*? Bear in mind that I have
some experience in patenting this sort of technology (I have been
involved in the patent work on the Habeas "technology", among others,
and I put that word in quotes because if you look at the Habeas model
I'm guessing many of you would be shocked to realize just how much
*is* patentable as "technology").
Ok, I'm going to guess that some of you might say "yes" to the
above. So, let's put it another way now:
Is the method for checking under Sender I.D. *identical* to the method
for checking for SPF?
Imagine a world where some day you have to pay for a site license to
be able to perform a check. Where the only receiver who *doesn't*
have to pay to perform checks is Microsoft itself.
Again, this is not Microsoft bashing - I personally believe that *any*
large receiver owning the ultimate rights to an authentication system
is a conflict of interest.
And to be honest, for the life of me, I don't understand why SPF,
which already had a lot of support from other corners, isn't what's
being pushed now. Although, of course, for all we know (and I very
much suspect) SPF is probably now in some way encumbered by MS
anyways. It would be foolish of them to embrace and incorporate SPF
technology without first making sure that they darned well owned it.
Just like any other acquisition - you can either put the competitor
under, or acquire them.
Anne
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