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Denzark
11-21-2012, 03:51 PM
Kickstarter are getting the legal treatment - could this affect small gaming projects (ie could this wippe them out?) Also what are the ramifications for 3d printing?

http://www.bbc.co.uk/news/technology-20434031

weeble1000
11-21-2012, 04:13 PM
It really depends heavily on whether the Court finds that Kickstarter "sells" any product or service related to a campaign funded through its website. I don't really have a clue about any relevant case law.

It would seem to me that crowd funding websites serve a significant public good. I would not like to see a crowd funding site like Kickstarter held responsible for a product tangentially related to a funding campaign from which the company takes its standard percentage of funds raised.

That would set an ugly sort of precedent and place an undue burden on crowd funding websites. It would be like holding Ebay responsible for products sold through its website. Like Ebay, these sites perform a service of connecting parties which are interested in conducting business.

Further, a credit card company takes a percentage of sales as a fee for providing the service, quite similar to Kickstarter in that respect. Again, this claim smacks of potentially very ugly precedent.

Bigred
11-21-2012, 04:20 PM
Hmmm,

Looks like a defensive patent infringement case by a company with expiring patents who is trying to fend off low priced newcomer competition.

The Kickstarter part of the suit seems minor as they are only including them as defendents because of the fee they charge for using the Kickstarter service. The primary target is the company fielding the lower cost product that rely on a patent that was filed in 1997 (so its expired).

It looks like the the sueing company is saying that they have several more recent patents "related to" the original expired one and that the defendant must have infringed on one of them (without naming which one specifically).

UPDATE: Weeble1000 is correct, patent length is 20 years. Oops - I should know better, I used to file patents...

plawolf
11-21-2012, 05:01 PM
Sadly this sounds like a typical competition through litigation tactic that are increasingly the norm for American companies because of it's out of control and bonkers patent system.

The patent system in America has now been perverted to the point where it has mutated into an obstacle and threat to innovation rather than it's defender and protector.

Instead of working to make their own products cheaper and more attractive, it is often so much easier, cheaper, and faster to just sue the start-up competitors out of business even if the plaintiff company has no real case. Big established companies can easily afford the legal fees to drag a case out in the courts for years with endless discovery, appeals and extension and win by default when their target is bankrupt by the endless legal fees or forced to settle to avoid bankruptcy.

weeble1000
11-21-2012, 05:35 PM
Hmmm,

Looks like a defensive patent infringement case by a company with expiring patents who is trying to fend off low priced newcomer competition.

The Kickstarter part of the suit seems minor as they are only including them as defendents because of the fee they charge for using the Kickstarter service. The primary target is the company fielding the lower cost product that rely on a patent that was filed in 1997 (so its expired).

It looks like the the sueing company is saying that they have several more recent patents "related to" the original expired one and that the defendant must have infringed on one of them (without naming which one specifically).

Patents typically have a 20 year lifespan. So a patent with a 1997 priority date would tend to be in effect until 2017. But there may be newer related patents that do not claim the early priority date. I haven't looked at the patents in any depth though, so I don't know at this point.

Nabterayl
11-21-2012, 07:14 PM
As for Kickstarter, though, I'd be shocked if THEY were shocked by this development. Obviously something like this was going to happen eventually. I presume Kickstarter budgeted for this, and their outside counsel has already thought of their theory of defense.

Lunar Camel
11-21-2012, 08:35 PM
Maybe I don't understand how it all works, but why would Kickstarter be sued? Don't they just collect the money that other people "donate" so someone can use for their business?

By suing Kickstarter would be like someone going after my bank just because they hold the money that I scammed from other people.

Kawauso
11-21-2012, 08:41 PM
Maybe I don't understand how it all works, but why would Kickstarter be sued? Don't they just collect the money that other people "donate" so someone can use for their business?

By suing Kickstarter would be like someone going after my bank just because they hold the money that I scammed from other people.

Yeah, that was my line of thinking.
If anyone could clarify on what absurdities within the legal system(s) show otherwise I'd appreciate it.

Rev. Tiberius Jackhammer
11-21-2012, 09:51 PM
Yeah, that was my line of thinking.
If anyone could clarify on what absurdities within the legal system(s) show otherwise I'd appreciate it.The gist of their stance was that since Kickstarter takes a cut of the donations for operating expenses, Kickstarter's complicit in the damage done to them. Still ridiculous, though.

Nabterayl
11-21-2012, 10:35 PM
It's not completely ridiculous. Kickstarter is not a bank; it's a marketplace. Remember that Kickstarters are not investments, legally speaking, nor even donations. When you "donate" to a Kickstarter, legally what you are doing is purchasing goods (the rewards). Those goods are bought and sold for very high profit margins (which is why it FEELS like donating), but they are still selling goods and you are still buying them. It's like a kid who sells his family crayon drawings at $10 a pop so he can "earn" a bike.

Only the kid isn't selling crayon drawings, he's selling pirated tech. And he isn't selling to family. Kickstarter is running a flea market, where the kid has a booth advertising his pirated tech. Can Kickstarter just stand there, looking at that booth, and not be at least partly culpable in the piracy?

Of course the defendants, including Kickstarter, will probably argue that the tech isn't pirated at all, and thus can be sold freely. But if it IS pirated, you can see how Kickstarter is at least arguably involved.

Kawauso
11-22-2012, 12:41 AM
But regardless of whether the tech is pirated or not, how is Kickstarter to know? Why are they expected to take responsibility there?

They've shut down obvious scams/ploys in the past, but when someone says "we want to make a 3D printer" and gets money to do so, how and why is Kickstarted expected to keep tabs on whether or not the technology they're using is patented by anyone else?

Rev. Tiberius Jackhammer
11-22-2012, 12:59 AM
If the other manufacturer provided them with reasonable evidence when the kickstarter was ongoing it'd be one thing, but expecting them to obtain (accurate) information about a product that often doesn't exist yet and measure it up against existing patents is a bit extreme.

Nabterayl
11-22-2012, 01:26 AM
But regardless of whether the tech is pirated or not, how is Kickstarter to know? Why are they expected to take responsibility there?

There are a couple different precedents here that are likely to control the issue. The first is the flea market example. If you are running an actual, physical flea market, you are legally responsible for making sure people aren't selling pirated stuff at your event. It's your event, after all - you can always turn vendors away if you don't trust them. For obvious reasons, it is no excuse to say, "My flea market is so big and popular I don't have enough staff to check out all my vendors."

Then there's the example of Google. Google may well let you find pirated stuff (e.g., pirated images), but merely putting out a search tool that can be used to find pirated stuff doesn't make you contributorily liable for the piracy itself.

And then there is the example of, say, Grokster, which is a lot like a search tool but with the important difference that it is designed, and used, by its owner to facilitate piracy (and other things, but if you do a good deed and a bad deed, the good deed doesn't let you off the hook). Tools like Grokster, unlike tools like Google, are contributorily liable.

So which of these three is Kickstarter most like? Doubtless the plaintiff and defendant will have different answers, and a court will need to decide whose answer is best - even if the plaintiff is a patent troll.

EDIT: As to how Kickstarter can keep up with everybody's piracy, doubtless their lawyers have a well thought out reason why they shouldn't, and don't, have to. The question is, will a court agree? And that is a legitimate question, for which I trust Kickstarter has a budget item (because sooner or later this was going to come up). Forget that this is probably a patent troll in the instant case. Suppose some perfectly lovable indie artist was suing them instead. Wouldn't that person have the right to know whether Kickstarter's Completely Reasonable(TM) excuse for why it could earn money from pirated goods held up to outside scrutiny, instead of taking the word of Kickstarter's very high-powered attorneys?

Nabterayl
11-22-2012, 02:27 AM
But regardless of whether the tech is pirated or not, how is Kickstarter to know? Why are they expected to take responsibility there?

There are a couple different precedents here that are likely to control the issue. The first is the flea market example. If you are running an actual, physical flea market, you are legally responsible for making sure people aren't selling pirated stuff at your event. It's your event, after all - you can always turn vendors away if you don't trust them. For obvious reasons, it is no excuse to say, "My flea market is so big and popular I don't have enough staff to check out all my vendors."

Then there's the example of Google. Google may well let you find pirated stuff (e.g., pirated images), but merely putting out a search tool that can be used to find pirated stuff doesn't make you contributorily liable for the piracy itself.

And then there is the example of, say, Grokster, which is a lot like a search tool but with the important difference that it is designed, and used, by its owner to facilitate piracy (and other things, but if you do a good deed and a bad deed, the good deed doesn't let you off the hook). Tools like Grokster, unlike tools like Google, are contributorily liable.

So which of these three is Kickstarter most like? Doubtless the plaintiff and defendant will have different answers, and a court will need to decide whose answer is best - even if the plaintiff is a patent troll.

Wolfshade
11-22-2012, 03:16 AM
There are two issues, the first is that if they are using a technique that they thought to be out of patent and isn't then really it is a simple case of infringement.
Then there is the problem when a person/persons find/develope a technique for doing something that they think is unique and so build a business on that only to later discover that their idea/technique has already been developed but was unknown to them, this is not the case in this instance and again is a fairly open and shut case, though it generates slightly more sympathy, especially if the patent holder isn't using that patent or had figured out that it could be used for a novel way.

The interesting thing is what is kick starter. A californian judge said of amazon, who were being sued for selling/advertising counterfiet goods:

“At least in respect to the InStyler, Amazon is a service provider, not the seller. That Amazon provided the product description and handled the payments did not make it a direct seller of the products.”
While that in itself is not case law, it does seem to show the view that a service provider is not necessarily the seller despite handling payments. However, another court another judge might view things very differently. I imagine the issue would be with Kickstarter would be if they had failed to respond to a resonable takedown request. Though whether something is reasonable or overreaching is normally in the strict perview of the hindsight.

weeble1000
11-22-2012, 08:15 AM
It's not completely ridiculous. Kickstarter is not a bank; it's a marketplace...
Of course the defendants, including Kickstarter, will probably argue that the tech isn't pirated at all, and thus can be sold freely. But if it IS pirated, you can see how Kickstarter is at least arguably involved.

I can see how it is arguably involved, but the argument borders on the absurd. Kickstarter provides a service that is unrelated to the rewards, whatever they may be, of the campaigns run through the website. Ebay is a marketplace, much more akin to your flea market analogy.

Do you have an example of Ebay being held as a seller of the goods sold by its customers? The complaint essentially alleges that Kickstarter is a partner in the sale of an infringing product, therefore sold an infringing product, and therefore is liable for the infringement.

weeble1000
11-22-2012, 08:22 AM
Doubtless the plaintiff and defendant will have different answers, and a court will need to decide whose answer is best - even if the plaintiff is a patent troll.

This is the antithesis of a patent troll. Do you understand what a patent troll is? This is an established company using its patent portfolio to keep a competitor out of the market. In principle, that is exactly what patents are supposed to be used for. Now, the claims may be thin and/or spurious, or the patent may be ridiculous, I don't know. But the strength of the patents if it were relatively thin does not mean that it is a patent troll.

Spurious patents are typical of a patent troll, but only a common feature related to the nature of those lawsuits. Patent trolls seek to purchase patents that can be very broadly interpreted for a small investment and then enforce those patents against a large, established industry, typically with the willingness to settle for a nuisance fee or cost of litigation, thereby getting a grossly manifold return on a relatively insignificant investment.

OrksOrksOrks
11-22-2012, 08:26 AM
This isn't copyright infrignement, its patent infringement, you're thinking of it incorrectly, would Apple now be able to sue Best Buy for selling the Samsung phones that were found to be infringing on their patents? No, the company creating the products is responsible for ensuring they have created a product that doesn't infringe on patents. They're named Kickstarter in this lawsuit for one reason and its paid off, they wanted people talking about it, otherwise, who would care about a 3d printer company suing a newer 3d printer company??

alshrive
11-22-2012, 09:17 AM
This isn't copyright infrignement, its patent infringement, you're thinking of it incorrectly, would Apple now be able to sue Best Buy for selling the Samsung phones that were found to be infringing on their patents? No, the company creating the products is responsible for ensuring they have created a product that doesn't infringe on patents. They're named Kickstarter in this lawsuit for one reason and its paid off, they wanted people talking about it, otherwise, who would care about a 3d printer company suing a newer 3d printer company??

got to say i kind of agree with this comment! it is Name Dropping for the sake of attention. Given all the hype that kick starter has received it is hardly surprising that somebody is trying to use that to their benefit.

Tynskel
11-22-2012, 09:49 AM
This is the antithesis of a patent troll. Do you understand what a patent troll is? This is an established company using its patent portfolio to keep a competitor out of the market. In principle, that is exactly what patents are supposed to be used for. Now, the claims may be thin and/or spurious, or the patent may be ridiculous, I don't know. But the strength of the patents if it were relatively thin does not mean that it is a patent troll.

Spurious patents are typical of a patent troll, but only a common feature related to the nature of those lawsuits. Patent trolls seek to purchase patents that can be very broadly interpreted for a small investment and then enforce those patents against a large, established industry, typically with the willingness to settle for a nuisance fee or cost of litigation, thereby getting a grossly manifold return on a relatively insignificant investment.

Wow. This is the best description of any troll I have ever heard.
I think you might find me in there...

Nabterayl
11-22-2012, 12:01 PM
I wrote those replies on my phone; I wasn't aware that the plaintiff was an actual operating company. I am aware of what a patent troll is - but it doesn't really matter, which is the point I was trying to make. Even if the plaintiff were a patent troll, the questions about Kickstarter's legal role are valid ones.

I'm also aware that this is not a copyright case, but contributory liability exists in patent land too, and courts often treat copyright contributory liability cases as applicable to patent contributory liability because the differences between copyright and patent are not really germane to the principle. The flea market's culpability is not affected by whether the kid is selling pirated music CDs or pirated 3D printers.

As for whether Kickstarter is like a flea market ... I honestly don't know. The eBay comparison is a good one, I think, and while eBay has also been sued on these grounds, I don't know if those cases have been decided. But it makes total sense for Kickstarter to be sued also. It isn't just name dropping; they're the ones with the money. How big a licensing fee, or damage judgment, are you really going to get out of some folks at MIT? And we don't know if Kickstarter is innocent here. What do their internal communications look like regarding infringing stuff on their marketplace? I'm sure we'd all love to believe that they're totally kosher, but they might not be, and suing Kickstarter is the only way to find out.

4Krieg
11-30-2012, 10:01 PM
This is lame. Kickstarter is a great site doing real good and people always hate that (IMHO). I am setting up a Kickstarter for a book I am writing. With out the support of others I could never get it out to others.