On Wednesday, September 28, 2022, Clemens Lang <
cllang@redhat.com> wrote:
Hi,
Michael J Gruber <mjg@fedoraproject.org> wrote:
Understanding is helped greatly by communication, though. Legal answers
such as "We can not" do not further this understanding, and "We can not
and we can not tell you why" is not much better, but these are the typical
answer we get, not even with a "sorry, but we can't". Obviously, these
legal questions are difficult to explain, but it can't be true that each
such case is under a "gag order”.
A lawyer at a previous employer told me that explanations of such decisions
can be used against you in court. Presumably, this also applies here.
That's sounds overlay paranoid. How can an explanation on why you are *not* doing something be used against you in court? I can get why "we don't think that patent XYZ applies so this is fine to ship" is problematic, but the other way around just doesn't make sense.
It’s related to additional damages for wilful infringement; if I say “I will not ship foo because I cannot get a suitable licence for patent US abc123455”, and the owner of that patent then claims I infringe because I ship bar, which they claim infringes patent US abc123455, they can also claim that my infringement of patent US abc123455 by shipping bar was wilful, because I clearly knew of the patent, I had analysed it to determine what it might apply to, and I’d decided to ship *bar* anyway, even though I knew or should reasonably have known (based on my analysis of why I couldn’t ship foo) that bar would put me into infringement.
Unfortunately, this is the flip side of well-meant legislation around wilful infringement - it’s simplest for a big US entity like Red Hat to simply say “no, and we’re not telling you why” to packages, because then there’s nothing to build a claim of wilful infringement around.
—
Simon Farnsworth