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Doug Nebeker ("Doug")
I do post here semi-regularly under another name, but thought I'd go anon for this one - I hope you understand.
My company has recently been contacted by another, with regard to our use of data in their file format. In very general terms, they manufacture a device that logs data in a certain format - nothing fancy, as it happens - just a few floats and ints and a chunk of binary data, repeated. All in binary, and reverse engineered by me.
The data that my app uses is collected by my users, on their devices, manufactured by this company.
First, they want to know how I came by the format.
Next, they say that use of files in their format for commercial purposes is not permitted without a license agreement from them - contact to discuss etc.
My limited (Google based) understanding of file formats and the law, seem to suggest that this company don't have a leg to stand on - that file formats can't be copyrighted, and companies are free to reverse engineer and use them. There seem to be plenty of precedents in court that back this up.
Before anyone asks - yes, I am contacting my attorney but he is (of course) out of the office until next week.
Just keen to hear if anyone has any insights. We are based in the EU and this company is in the US - in case it matters.
In MPEG-4 video coding and decoding there are several components that are patented. You don't need to implement all the components to make a codec because there are different levels of specification (they call them "profiles") for different applications and some of the components are optional.
If you sell a codec or video created using that codec component then you have infringed that invention.
Maybe file formats can't be copyrighted but as above, there could be other ways you can be blocked.
IMNAL but that won't stop me: in U.S., in general, reverse engineering for the purpose of interoperability is OK. Thanks to Hollywood lobbying, however, if they can frame the thing being reverse engineered as a security mechanism (e.g. DRM), then breaking that might be illegal (not necessarily reverse engineering itself, but writing tools that undo the protection).
Obviously it varies in other countries. It seems that at least in France the same applies (see http://www.geek.com/microsoft/skype-protocol-reverse-engineering-ruled-legal-in-french-court-1574827/)
Thursday, October 24, 2013
If they don't have a patent, then they are making a copyright claim. But formats are not copyrightable, only format specs, which you aren't publishing.
They have no leg to stand on and they know it, but that doesn't mean they can't harass you or cause you to spend so much on lawyers you go bankrupt. Which is their goal if they perceive you as a competitor.
In the US, reverse engineering of file formats has been decreed as fair use by courts because interoperability is necessary for competition and a free market to work. If it goes to court and you have deep pockets to fight it, you will "win" in the end, assuming you can make it through all the appeals, filings in Texas, and such things they will pull if they are a big company.
Your biggest advantage right now is you are in the UK.
Absolutely do not respond to them yourself, everything you say will be used and every conversation steered to make you admitting some sort of guilt.
You should consider paying a top american IP law firm send them a "f-u" letter though as a response. It's going to be very tricky to find the right person to do this though.
Also, just because they said "First, they want to know how I came by the format.", you do not have to answer this. ANY information you give them strengthens their hand.
No response at all from you is ideal - force them to try and file a lawsuit in whatever country you are in. Make sure you have both the top law firms in your own country on retainer, so that will prevent this other company from being able to hire them. Old legal trick.
"They have no leg to stand on and they know it, but that doesn't mean they can't harass you or cause you to spend so much on lawyers you go bankrupt. Which is their goal if they perceive you as a competitor."
This is my analysis also, unless they are ignorant of the law - but I can't find a single case example that would back up their point of view.
My company does carry insurance, and the cover includes claims for IP or copyright violation.
BTW, I've reverse engineered countless formats and helped saved billions of dollars in people's valuable lost data and work that became inaccessible when the company that made the software that produced the file stopped supporting their own formats in new versions, or sold to another company and the product was retired, or other reasons.
As a result, at least once a year I get an email from a competitor that says, "where u get the format codez? please haz sent me ur codez". I ignore all these emails from competitors. That just shows what a hard bastard I am, that I want to obstruct the freedom of codez, according to my competitor's follow up letturz.
If I was to respond to this company I would ask them to present me with a specific list of the patent numbers they hold that they believe I am violating, and not to contact me further if they do not have that information as I will take all false legal threats seriously. Companies pursuing malevolent claims that they know are not based on hard cold facts of genuine patents can end up losing their shirts in bad faith damages when you bite back and start filing countersuits.
> they want to know how I came by the format
They are naturally suspicious that you simply reverse-engineered their format by hacking or disassembling their product.
From what I can tell, though, if you had came by the format by "clean room design", then you'd be 100% in the clear and they'd have no legal leg to stand on. Of course, you'd have to prove that CRD was used to learn the format.
Disclaimer: I am not a lawyer so the above could be rubbish.
I've been in similar situations before. I just don't respond. I don't consult a lawyer. I don't answer emails. I don't return phone calls. I ignore.
Monday, November 11, 2013
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