For those that didn't know it, you should consult your lawyer about
the best course of action for your business.
None of the
postings on any of these threads by me constitute a legal opinion
because I am JD-challenged (meaning we don't have a legal degree
and not an attorney). My posts express my opinions and could be
based on facts, hearsay, gossip, observations, premonitions, hindsight,
delusions, or insanity.
If people do
exactly what I say in posts, then go jump off a bridge.... this
will allow natural selection to remove the idiots.
For those still
alive and still reading, this disclaimer has been provided for all
posts on the Acacia subject. The disclaimer is effective retroactivey
for all prior posts, all future posts, and any posts in a previous
of Adult companies that have licensed:
Some info concerning
patent re-examination request like the one that is being done against
the Eolas patent (Microsoft lost in court to Eolas for allowing
IE to use hahahahahaed programs like Flash). The World Wide Web
Consortium (W3C) has petitioned the USPTO and the USPTO has accepted
3-6 months after filing to be addressed. Due to public outcry, the
request took 1 week and the USPTO Director personally approved the
gathered from talking to several patent attorneys on re-exams:
The patent examiner
will spend about 15 hours total on the re-exam..which is alot more
time than is spent on the actual patent(!!!) before coming to a
preliminary decision, before then talking to the patent holder.
A person or
company pays the filing fee (about $1,300) and then needs to have
a patent attorney craft explanations of prior art to invalidate
the patent claims. The estimate cost is about $30k-$50K for the
whole process in attorney time, not to mention money spent to find
document is filed to the USPTO...and then the examiner reviews the
information and discusses with the patent holder. The review is
one-sided..only the patent holder is allowed to discuss the prior
art points with the examiner.
could take 6-8 months (or longer) before a final decision is made.
If the prior
art is solid and the patent holder cannot explain away the evidence,
then the patent is revoked and invalidated.
It is better
to argue in court with a judge, then to take your chances with submitting
a document to the USPTO. Atleast with a judge, you can argue your
points....with the re-exam, there is not discussion.
is that the patent holder can continue to gain new licensees of
their patent, until the final outcome has been determined.
of Acacia Legal Activity
When clicking on this URL, choose California and press "select state",
then in the 'company name' box, type Acacia and press search.
the threads is a good idea FIRST. Get informed yourself, your attorney
won't know what all this patent stuff is about. If you are still
confused, post your question here or feel free to email me: brandon
post anything that will potentially get you into trouble ie. your
company name, URL, etc.... ask generic questions, like 'i have a
to your attorney. Understand that he is NOT a patent attorney, and
he should focus more on the ramifications of your decision for the
1) do nothing
3) fight it
Don't let him
steer you down the path that "well if it is a patent, it must
be valid" or "if Hustler signed, it must be valid".
Ken has posted many times that Hustler's decision to license is
based on their business decisions and does not validate or prove
the validity of the patent (thanks again Ken for coming out with
If you don't
make that much money then based on your situation, your options
are #1 and #2.
If you want
to try and fight against the patent claims, make sure you have these
- 10k-35k set
aside Then contact: spike at homegrownvideo.com
Some quick links
for your own research:
page, all lists the companies that have settled based on their Press
Acacia has patents (international)
Link to their
patent as filed with USPTO:
Licensing agreements for Webmasters and Content Producers
Info and articles
about patent abuse cases being tracked (Acacia, USA Video, SightSound)
Protective Association (adult industry association)
Here's a quick
summary of who is doing what:
IMPA has pulled
together the current defendants to share a common pool of money
to pay for attorney expenses. The buy-in is a few thousand a month.
Since there are 11 defendants, each one gets a chance at bat. The
money put in goes towards dealing with your individual correspondance
with Acacia and the Defense Team, as well as money to fund the first
people's whack at bat. Should the first batter strike out, there
is a second batter, and so on. I feel that the Defense Team has
a solid case against the patent claims. People like me and all the
great volunteer searches are still looking, there is always a need
for that gold nugget in the pile of rubble.
Contact: spike -at- homegrownvideo.com
IMPA is an association
that is a watchdog for all kinds of issues that pertain to webmasters.
Currently, IMPA is focused on patents, best practices (COPA, 2257),
and the trademarking of the term "virtual sex".
IMPA has a membership
fee (http://www.impai.org/join.html)..most would fit in at the $100/year.
IMPA membership money goes towards hiring attornies and funding
activities to spotlight and target issues that affect webmasters.
Fight The Patent Foundation ("FTPF"):
FTPF is proposed
to be a non-profit (501c3) organization that focuses only on patents.
It will operate like the ACLU, to provide companies faced with a
patent abuse claim with defense attorneys, as well as expert witnesses
and prior art. FTPF's charter is to use the 'pay it forward' concept
to motiviate expert witnesses to come forward to provide testimony,
critical to support the prior art finds. FTPF will also use a grassroots
approach to finding prior art by opening up a system where people
can submit prior art leads, and get rated on their finds to earn
Acacia is just
the first company to be wield patents to the adult industry. There
are many more companies with audio/video patents, as well as other
patents that will affect this industry. Patent holders with Acacia-like
business plans could come from WITHIN the industry.
This is the
new business model that some feel is a great way to make money,
without ever making a product, without delivering a service, and
without developing a company.
The big players
have settled....proving that there is no community? I would disagree...and
I hope that the rest of the webmasters who haven't settled can band
together to show community.
If you have
money and want to fight, i suggest donating to the Defense Fund
so you can get yourself legal protection.
is an excerpt from a YNOT article where Berman answered some questions
(Berman didn't answer my email on some questions, so i gave them
to YNOT...and here is one of them from Jay's interview/article:
When you mentioned one time ftp transfer of content files,
is it infringement of your patent if the video files were compressed
into a ZIP file for downloading, rather than just the AVI or MPG
file? Is it infringement if a person transferred / downloaded a
ZIP file that didn't have any audio or video files, and why?
Our patents cover the transmission and receipt of digital content.
Digital content is transmitted and received via the Internet by
being encoded, compressed into a series of addressable data blocks,
and stored. The content is then sent to a remote location, decompressed,
and played on a computer or other receiving device. This is the
process covered by our DMT patents.
about our technology is outlined in the patents. In exchange for
making this information publicly available, the United States Patent
Office grants a monopoly to the patent owner for a period of 20
years from the filing date of the patent. That is why Acacia has
the legal right to determine who gets licenses, and which companies
file is a way of further compressing a file. To determine whether
the transmission and receipt of a zipped file is covered by our
patents, it is necessary to look at the underlying file that is
being zipped. If the file consists of audio/video content, the transmission
and receipt of the file is probably covered by our patents. If the
underlying file consists of still photographs, it is probably not
Part 1 of YNOT's
interview with Berman of Acacia 9part 2 is linked in the previous
to the article:
of defendants waiting for their day in court (list posted by Far-L)
Some of the companies fighting this, meaning actually engaged in
a lawsuit disputing Acacia's claims include:
Has Acacia only
targeted the adult industry?
Acacia has been sending its "information packets" to mainstream
as well..... in the 3Q conference call, the CEO or President said
they were in "talks" with cable companies.. of course
he also said there were no open litigations at the time and were
in "talks" with the remaining companies that had disputed
University received a packet (i confirmed with their General Counselor)
and Seton Hall U. (i confirmed it with their CTO) are examples of
They have outlined
a broad range of industries that they are targeting. The first signs
of real resistance has been with the adult industry.
companies are close to going to court than the 11 adult companies.
posted by Nismo (on GFY)
I dont own any paysites, or do design, nor do I own a TGP. I
just push other peoples/business' sites like ARS, silvercash, etc,
yet I got an acacia letter. Should I be worried?
you are an affiliate to sponsors....
against you are that you are a "contributory infringer"..sending
traffic to sponors that haven't licensed their patent and you are
profiting from that arrangement.
Yes, it does
sound absurd to me too.. but that's what they claim.
several statements about Hustler saying that because Hustler signed,
any webmaster that was an affiliate would not have to get a license.
is that most webmasters have more than 1 sponsor.. so it seems that
Acacia would have to figure out what percentage of your income came
from "infringing sponsors" and charge you accordingly.
So if you ran Hustler banners, and other sponsor banners, you are
not free from Acacia's claims, only free of the percentage of revenue
you derived from Hustler.
Same goes with
all other sponsors that settled.
of this licensing/settling is that as an affiliate who might be
faced with an eminent lawsuit by Acacia, may feel they should only
use sponsor programs that signed...therefore "convincing"
other sponsors to settle, otherwise, they start to lose affiliates.
a way of reducing competition by selectively CHOOSING WHO YOU WANT
TO OFFER A LICENSE.
So Acacia could
pick and choose who they wanted to ALLOW to license their patent...
conspiracy theorists start thinking about this one.
article: Acacia Reaching To Affiliate Sites
posted by juicylinks (on GFY)
that ruling would ACACIA lose any rights from sending out naymore
packets and suing anyone else?
A very interesting
question, which also brings up a related question, "If you
have a licensing agreement with Acacia and the patent is found invalid,
does the contract become invalid when the patent is invalidated?"
If the patent is found to be invalidated, then yes, no more packets
can go out... BUT, if they are stuck in court for months and years,
they could STILL be sending out packets...
A patent dispute
case could take many months, up to years... so while the court cases
are going on, Acacia could still be "convincing" webmasters
You also DON'T
get your money back if the patent is found invalid.
Berman was almost
bragging at this fact on the D$ interview when someone asked about
V-Chip case being lost, and he said something to the affect that
they already collected $27M in licenses, and didn't consider that
to be a loss (if anyone has a transcript or an archived file, it
would be great to have).
What would be
nice is if the judge puts a hold/freeze on any more lawsuits that
Acacia can file until the outcome of the current 11 defendants.
If that were to happen, then everyone could breathe a sigh of relief
and everyone can be focused on supporting the 11 defendants.
I am not sure
if the judge can do that, i am not a lawyer, and i have never seen
any instance of this on any TV show.
If the judge
allows more suits to be filed while the cases are going on, then
this would be bad news for webmasters who have to decide to settle
for a license, while cases are pending.
As far as the
question i posed, i haven't followed up with the v-chip case after
the verdict with Sony...about the companies that did license the
V-chip patent, and their responses, etc.
IP's used to visit websites
Acaciares.com (corporate HQ)
22.214.171.124 - 126.96.36.199
HMB.com (attorney firm that is handling the patent litigation for
posted by hiddenuser (on GFY)
the contract pay 1st year then drop videos and tell arcaia to shove
their patent as I no longer use video or audio, would that be ok?
I have had so
many say that to me.... the costs to fight are high and uncertain,
whereas the couple hours of attorney time to review the license
and pay the license is fixed.
It's a tough
business decision you have to make, especially if you feel the patent
is invalid, and have almost no choice but to either pay, or wait
for the court summons.
This is exactly
what webmasters in mainstream are facing with PanIP. One of the
defendants put together a website at http://www.YouMayBeNext.com
runs rampant to all business, regardless of industry, and Acacia
is not the only one. So many also think to just deal with Acacia,
then stick their head in the sand.... This is just the beginning
of patent licenses and additional "taxes" on your business.
You might want
to check out http://www.FightThePatent.co.nz
The New Zealand/Australian
cousin to www.FightThePatent.com
We are not related,
but they are tracking patent abuse from DET about doing e-commerce
with consumers who are outside the country.. you may be able to
find some patent attorneys involved with this issue that might be
able to help you in evaluating your decision.
"Attention Patent Holders" by Brandon Shalton
If you have
a patent and are thinking about coming into the adult industry to
"convince" people to license your patent, I have some
observations and comments for you (for those that are satire-challenged,
this is a satire):
1) It won't matter what your patent actually means, what will scare
webmasters it what you WANT your patent to mean. Just point out
how you SAY they are infringing, show them a patent application
and a license fee, and they will most likely believe you.
You don't have
to be right. Take advantage of Patent and Civil Law where they are
guilty until proven innocent.... and as you know, only a court will
be able to make that decision.
2) There is
no community. Don't worry about the big players looking out for
the smaller players.. just get sweetheart deals with them so you
can parade their name around town. You can make so much more money
by getting a mass number of webmasters to pay you a smaller amount,
then to get a few big players to pay you a large amount.
3) Don't try
to go after large mainstream companies or universities, you will
only get yourself in to a huge court battle with people who have
deeper pockets. Pick on the targets that make enough money to pay
for a nice car and a nice house and who spend their time on GFY
posting how great they are.
4) Don't charge
alot of money or do any percentages of GROSS revenue.. That's just
a bad idea.. make the fee structure simple like if you make less
than $300K/year, the fee for the license is like $1000. Over $300K,
$1000 is cheaper
than 3-5 hours of attorney time and a low enough threshold that
they will just pay you the money to be done with it.
it.. 10,000 websites giving you $1,000/year = $10M/year all for
doing nothing but sending out information/infringement packets.
You already know how to do spam, just print it this time and mail
it. I bet you will see higher then 1:500 conversions.
5) Don't worry
about people like me who are trying to bring awareness to patent
abuse. While I am trying to help defend people's right to do business,
free of any bad patent (a bad patent is one where the idea or invention
was in use before the patent), I am being criticized and bashed
for my efforts.
about my Fight the Patent Foundation idea, just look at the pledge
counter below.. i am open enough to display the total, and as you
can tell, I am far off from reaching the total. The big players
could contribute to the Foundation, since I am not focused on just
one patent abuse case, but most likely they will just continue with
their business and deal with people like you on a case-by-case basis.
Anyone who tries
to get webmasters to contribute to a fund to band together gets
seen as some kind of "scam artist" or a fraud. Even organizations
that have been setup by fellow webmasters like IMPA have trouble
getting webmasters to donate/become members.
By making a
sweetheart deal with some big players, you could actually get people
who admire those companies to actually bash anyone who tries to
fight against your patent. Some of these people will have good credibility
with the webmasters that others will automatically think that they
must be right, so they too should take up the bashing. It's a brilliant
strategy to help silence and defeat any effort that tries to go
6) Don't worry
about the 11 defendants that are standing up to Acacia... they will
get burnt out financially from the expenses of their defense. They
will also be jaded by the lack of industry support and will most
likely not be standing up to fight against the next attack. Think
about it.. paying like $15K-$50K each for defense, could pay your
$1,000 license easily, for 15-50 years!
7) Go after
everyone up the chain from web designers, web hosts, webmasters,
content producers, domain registrars, etc. Target everyone.... you
never know what will stick til you throw it on the wall. Even send
out letters to webmasters who are in no way infringing on your INTERPRETED
patent... they may just pay you anyways.
8) Don't bother
thinking that I might want to join your company (had one company
already ask). While I am very technically skilled with some business
savvy, I would rather give up all my technological innovations,
turn my computer off, disconnect from the internet, and go do some
woodworking, rather than see patent abuse stifle innovation and
financially drain companies.
9) The webmasters
won't read this whole post, it's way too long for them.. anything
longer than a 1 sentence jab is too much for them, so don't worry
about me posting this in a public forum, they won't be reading it.
10) Use Affiliate
progams as easy ways of getting mailing addresses of people to target.
Maybe offer some stock to these companies. I know you think that's
harsh, why bite the hand that feeds you? If you can get them sweetheart
deal, maybe give them some stock, and keep it all confidential,
then it's all good.
Sure, it may
suck that the people who helped make them successful get hit with
the license. They know it takes money to make money, so this low-cost
patent license is just another cost of doing business. If they can't
afford the $1,000/year, then they just aren't doing something right.
Afterall, the sponsor worked so hard to build up their business,
they know what it takes.
You have picked
a great target in selecting the Adult Industry.. Berman from Acacia
said it best, they are "low hanging fruit".
along with the Acacia news, study their methods and you will have
a blueprint for your own plans.
The only problem
that I think you may have, is that other people already have similar
ideas of targeting webmasters for patents.
If too many
patent licenses come out at the same time, you could end up really
pissing people off, and then they would join together (when that
happens, i'll be long gone after my fingers have gone stiff from
all the emails and posts trying to get support, from my voice going
scratchy in all the phone calls in helping to bring awareness, and
by the bruises I take for being bashed in defending people's rights).
you join forces with the other patent players (just don't make it
public because that could be an antitust issue) and schedule/time
your efforts. Maybe like 1 per quarter.. spread out the schedule
so you put things in rotation and then you won't hurt your individual
efforts in leeching money from these hard working webmasters. Just
when their wound starts to heal from the previous patent attack,
you hit them with another.
This is a satirical
post. If you did not laugh at the end, then you would have realized
that "truth is said in jest".
these points you can see is going on right now (minus some stuff
I made up for this fictional story).
If you want
to take a stand against patent abuse, join me in my solution and
my fight at http://www.FightThePatent.com/go
If you don't
like my solution, come up with a better one. I will join it if you
can come up with a better way.
Just wait a
little longer... the fictional story above will be come a real one.
Listen to the
archived 3Q conference call at :http://biz.yahoo.com/cc/9/35459.html
(gee, wonder if Yahoo has a license)
points i remember from the call:
1) A shareholder
asked if there were any open litigations and the exec answered NO.
Which means they misrepresented the facts..there are 11 defendants
just waiting for the court to schedule a date. ( Anyone know any
Securities Attorney? )
2) That Acacia has updated their business model to include having
companies loan them their patents and allow them to go around and
"convince" people to license the patent, then they share
the bounty with the company. (Acacia PURCHASED the 'DMT' patent.
3) Only $1M set aside in their warchest for patent litigation. (Where
did the $27M in licenses for V-Chip go?)
4) Acacia would be expanding licensing activities into Europe and
Asia in Q4
5) That's all
i can remember.. i have seen places on the web where you can pay
for transcripts of conference calls...
posted by Marina (on GFY)
I have a question...........
it just be cheaper to hire a hitman?
Not these days,
with the high insurance premiums for hitman's health and medicial
coverage, cost of living adjustments, 401K plan, plus the additional
fees that the Hitman Union requires for covering trauma or therapy
for the hitman, along with the re-habitilization and education programs,
it gets to be very expenese... and the government just doesn't recognize
these groups of people for government subsidies or welfare programs.
for Acacia From a YNOT interview with Berman:
reasonable business people and are not the villains that some have
made us out to be on the chat boards. If anybody has questions or
special circumstances that apply to them, they are welcome to call
(949-480-8300) or email us at rberman@Acaciares.com."
PLEASE BE PROFESSIONAL.
As I have been
reading in another thread, calling them names, having them hangup
on you, or you hanging up on them, doesn't get you the answers.
Berman about Affiliate/Sponsor licensing issue:
cases, if the sponsor licenses from Acacia, the affiliate will be
covered," Berman told XBiz
The problem is
that webmasters carry more than one sponsor... so that puts them in
the same place of infringing.
You would exclude
the revenue received from the sponsor that was covered, and then
total the GROSS revenue on the ones that were unlicensed to determine
your licensing fee.
Plus, if you
have any audio/video files served off your own server, than that's
another count of infringement.
It's still absurd
It has been
said in many, many posts that early settlers or other licensees
had received sweetheart deals.
that settled said they didn't get a sweetheart deal and that they
don't believe there was ever a sweetheart deal with anyone.
If there were
sweetheart deals, it would be a no-no for Acacia since that would
violate some antitrust laws.
These come to
Section 1 outlaws contracts and conspiracies in restraint of trade
Section 2, amended by Robinson-Patman Act (1936), bans price discrimination
that substantially lessens competition
Section 3 prohibits
certain practices that might keep other firms from entering an industry
or competing with an existing firm
Section 7, amended
by the Celler-Kefauver Act (1950), outlaws mergers that substantially
Commission Act (1914)
Section 5, amended
by the Wheeler-Lea Act (1938), prohibits unfair methods of competition
and unfair or deceptive acts
If you are a sponsor and you feel that other sponsors got sweetheart
deals, you are able to make a complaint at:
of Acacia's financial status:
posted by Badabing (on GFY)
1) If I have a free website without a/v content that links to
a sponsor who provides a/v content, must I get an affiliate license
with Acacia if that sponsor has a license with Acacia?
2) Must I
get an affiliate license with Acacia if the sponsor I link to does
not have a license with Acacia?
3) What if my sponsor doesn't have a license? I'm not clear what
their expectations are in that case.
1) No, Berman
has made it clearer in recent news releases that if a sponsor has
a license, then the affiliates don't have to. The problem is that
a webmaster usually runs more than 1 affiliate program, so they
will end up having to either get a license, or drop all sponsors
who haven't settled
2) Yes.. if
the sponsor hasn't settled, then that makes you a 'contributory
infringer' so therefore you would need a license.
3) If they don't
have a license then you could be liable.
This is all
absurd and ridiculous..and unfortunately, the court systems move
slow to give the 11 defendants their day in court.
posted by NightLizard (on GFY)
just a quick question, since acacia has no canadian patent, can
they still come after canadian webmasters, is it under nafta?
I have some
Canadian webmasters looking into this since I have yet to find a
them at http://patents1.ic.gc.ca/intro-e.html
I am guessing
that US patents apply to canada, but Canadian patents might need
to be filed in the US.
Let me know
what you find.