Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent. [emphasis mine]
So yeah, use is infringement, and you need a license. I agree that the expectation is that the manufacturer has provided you with this license, but it seems in this case the manufacturers have cheaped out and only pony up for a non-commercial license, expecting the user to purchase a commercial license if one is needed.
My point is that simply legislating MP3 players to produce no more than 85 dB is a rather odd request, as the MP3 player can't know what dB it's producing. I see what they are trying to accomplish, but I think it is futile and will probably result in worse players. I guess as long as they restrict it to the headphone amp and leave the line-out alone, one can always build/buy their own amplifier.
Oh, and I love the analogy of 120 dB = jet taking off. From how far away? I'm constantly within ear shot of jets taking off, and I would put it at 60 dB. Of course, that is probably on the order of 1 mile away. I would guess if you were standing on the runway directly below the jet as it was taking off it could even exceed 120 dB.
Pascal is not a high-level language. -- Steven Feiner