The MPEG-LA's Lock On Culture

jrepin writes in to recommend a piece by Eugenia from OSNews, which explores the depths of the MPEG-LA's lock on video. One part of the problem is that almost all video cameras, including ones that cost more than $12,000, declare in their manuals that they are for "personal use and non-commercial" purposes only. "We've all heard how the h.264 is rolled over on patents and royalties. Even with these facts, I kept supporting the best-performing 'delivery' codec in the market, which is h.264. 'Let the best win,' I kept thinking. But it wasn't until very recently when I was made aware that the problem is way deeper. No, my friends. It's not just a matter of just 'picking Theora' to export a video to Youtube and be clear of any litigation. MPEG-LA's trick runs way deeper!""

Comments

Kill the lawyers.

[h00manist]

Or just change the law. No more copyrights-patents.

Re:Kill the lawyers.

[Devout_IPUite]

5-10 year patents on physical gizmos might be okay. But the patent application process needs to not be willy nilly approval.

Re:Kill the lawyers.

[Anonymous Coward]

Ditto with copyright. When the United states was first formed as a free country copyright terms were essentially 28 years in length. In the 20th century these terms were increased substantially. Current terms are complicated but can easily be over 100 years in length. If copyright terms were rolled back to something reasonable such as 30 years then a lot of this so called illegal copying (downloading a Beatles song for example) would simply go away. Of course the recording industry wants to sell all this old music to me and my children. Think of a world where a large conglomerate owned the works of Shakespeare and/or Mozart. You'd have to pay their asking price to read or listen to those works. I find that scary and unfortunately that's the world our children will live in as they grow up in a culture of essentially perpetual copyright.

BTW: I don't agree with the subject line. Lawyers aren't the problem. Most of them just work for someone whose paying the money, just like the rest of us.

Re:Kill the lawyers.

[SimonTheSoundMan]

This is why the BBC came up with Dirac. Even for them to pay developers to come up with a new codec, they still save tens of millions of pounds each year by not having to pay MPEG-LA to use their codecs. The BBC then made it open source, they made their savings internally so they have more to gain from the FOSS communities.

Dirac hasn't taken off on the web yet, main reason IMHO is because it hasn't been check out against patents in the USA, and it can get a little more CPU hungry than h264. I know this is one reason why Mozilla haven't used Dirac as a codec in their browsers. Saying that, you can use the open source Schroedinger Dirac encoder that uses CUDA, less CPU cycles used than encoding with free h264 encoders.

Re:Kill the lawyers.

[spmkk]

5-10 year patents on physical gizmos might be okay.

It often takes 2-4 years to bring an idea for a physical gizmo to market, depending on the gizmo's complexity. It then takes a further 2-3 years to gain market acceptance, if you're lucky.

So what you're saying is, if I invent a physical gizmo, patent it, and invest my time and money to develop and market it, my IP protection should expire just about the time the effort begins to come to fruition -- opening the door for anyone to compete with me on price, which they're able to do because they don't need to recoup the R&D and marketing investment?

What do you expect will become of most good, but R&D-intensive, ideas if we accept your proposal?

Re:Kill the lawyers.

[harlows_monkeys]

No copyrights would mean no Free Software.

Re:Kill the lawyers.

[BKX]

You know, as an up-and-coming lawyer (not one yet, but will be), I find this "kill-the-lawyers" sentiment annoying, to say the least. The problem lies with the legislature, the people who write the laws, not the lawyers who use them or the judges who interpret them. Legislators are largely NOT lawyers, and of the few who are lawyers, most have never practiced. Usually the laws aren't even written by the legislators but by other people, often lobbyists (who are usually former legislators). You'll notice that almost none of the people involved in making these laws are experienced lawyers. They have no idea how to read them (and usually haven't). They don't understand how the laws they pass will interact with others. They don't know how to think through the laws to understand the consequences of their actions. It's horrible, but it's not the lawyers' faults. The lawyers are just doing their jobs - advocating for their clients. It's their clients that are assholes and legislators that are idiots.

Re:Kill the lawyers.

[gd2shoe]

Or just change the law. No more copyrights-patents.

All the film makers have to do is pack up and move out west, where the patent holders can't get to them.

Worked before, didn't it?

For those who don't get the reference, that is exactly why Hollywood has been the capital of film for so long. Before travel became easy, long distance litigation was difficult at best, and California was just about as far away as one could get and remain in the US. Every time you hear the name Hollywood in reference to the film industry, you can think about patent law.

Re:Kill the lawyers.

[Chowderbags]

No copyrights means nothing *but* Free Software. Copyleft only arose as a kind of copyright judo because it was the only workable way to do what was wanted within the system that was there. Don't learn to love the best solution in a bad situation more than the best actual solution.

Who reads the manual?

[Peter Simpson]

"declare in their manuals that they are for "personal use and non-commercial" purposes only."
You don't always do everything that the manual tells you to, do you? I'm pretty sure that thousands of people a day use these cameras for commercial purposes without any problem (I know we use them at work). And I'm also pretty sure the MPEG-LA doesn't want to see the issue end up in court, because they'd probably lose.

Re:Who reads the manual?

[h00manist]

"declare in their manuals that they are for "personal use and non-commercial" purposes only." You don't always do everything that the manual tells you to, do you? I'm pretty sure that thousands of people a day use these cameras for commercial purposes without any problem (I know we use them at work). And I'm also pretty sure the MPEG-LA doesn't want to see the issue end up in court, because they'd probably lose.

Fine solution. Ignore the patents-copyrights. Go Pirate Party!

Re:Who reads the manual?

[Pharmboy]

That is all fine until you produce a video that actually makes you money, and they sue you for royalties because you used their codecs to do so. This would be above and beyond the price you paid for the products. And there isn't anything you can do about it, because it is "clearly stated in the license agreement".

Or worse yet, if they disagreed with your video for political reasons, they could go after you for that, claiming it is because you failed to license it.

Re:Who reads the manual?

[mikael_j]

And you seriously think this would hold up in court?

Re:Who reads the manual?

[Bert64]

It's a bait and switch, they won't do anything right now because they want to get h.264 as widespread as possible.
Once people are well and truly locked in, thats when they will screw everyone... Expect them to come after all these thousands of people demanding huge royalty payments. They'd also probably win because their actions although morally questionable are still within the law.

Re:Who reads the manual?

[Draek]

And I'm also pretty sure the MPEG-LA doesn't want to see the issue end up in court, because they'd probably lose.

Unless you're a lawyer, I don't think you're qualified to make that kind of comment. Actually, I believe even if you *are* a lawyer you aren't qualified to make that kind of comment, the laws that could potentially come into effect are many and fairly complex so I don't think it's as clear-cut as you make it out to be, at least not for the infringing side.

Re:Who reads the manual?

[Xiaran]

This does hold up in court. I have been involved with online video companies and have dealt with the MPEG-LA... the standard MPEG-LA attitude is once you start making enough money to make it worth their while(say > 100k... that was the figure I was quoted) the MPEG-LA will negotiate payments from you. And they do it to everyone. What you find outlandish is in fact their business model.

Re:Who reads the manual?

[mikael_j]

I'd still like to see some examples of this that aren't in east texas, or even better, outside the land of lawsuits (AKA the USA).

Re:Who reads the manual?

[zero.kalvin]

I would like to see how they are going to enforce that. There is overlaying stuff here, You bought a camera, that camera is yours, you own it. Using to film your new episode of 2 girls 1 cup and sell it online is your right, and yours alone. That's like buying a car, and the manufacturer tells you, that you are not allowed to use to car to race, because the steering software is not licensed for racing. If anyone is liable it's the manufacturer of the camera, he has not right to enforce how you are going to use your hardware even if it was in the EULA, and if you do break the EULA as it is, it there ass's who is going to be prosecuted. "The Usual IANAL statement".

Re:Who reads the manual?

[ZosX]

What license agreement? The one in the manual? You don't have to agree to that. You aren't forced to sign anything. A lot of newer cameras don't even come with the manual in the box for fucks sake. How is that even enforceable from a legal perspective? This has less clout than a clickable EULA, and people expect it to hold up in court. Yeah. Good luck with that one. That being said, I read TFA, and I agree that we have certainly entered a legal quagmire, but how much of this stuff will hold up in court is truly questionable. If anything the theora codec developers have far more to worry about than the average consumer/company posting videos.

Re:Who reads the manual?

[dhasenan]

You film it in an MPEG format and convert it to Ogg Theora before distributing it. Might work.

Re:Who reads the manual?

[bersl2]

And in a very screwy way, that's actually how the whole patent game is "supposed" to work, i.e., find some reasonable amount to charge for a license, then do it.

As with proprietary software and copyright, perfect enforcement of the law would be just as disastrous as not enforcing at all, so they only care if you're a big-enough fish, and if you're small and are going to get away with infringing, they'd rather you use their product (codecs covered by their patents) and increase the network effect than use somebody else's product (codecs not covered by their patents).

Re:Who reads the manual?

[ribuck]

Fine solution. Ignore the patents-copyrights. Go Pirate Party!

Even the Pirate Party advocates changing the law, not breaking it (it's already broken).

Re:Who reads the manual?

[DarkOx]

I agree it remains to be seen as to what degree this will or will not be enforceable. This is a sort of reverse tivoization though if it works. Sure we sold you the hardware and you have the right to do anything you want with it; never mind we control the software and the hardware is worse than useless with out it. I think if we are going to preserve the concepts of first sale, property ownership in general, and a host of other things we commonly understand copyright and patent protection for at the very least certain classes of software are going to have to go..

Re:Who reads the manual?

[Draek]

Outside the US there are no software patents, therefore h.264 can't have any patent over it, therefore MPEG-LA can't threaten anybody for anything.

The issue with h.264 has always been the US, and while I'd personally be happy to lock them out of the entire internet just for being a bunch of morons with an ass-backward legal system, companies would never stop trading with them so it'll never happen, and the more we interact with them the more we get screwed by their goddamned idiotic laws (in most of the world copyright lasts for 50 years, for instance, but try finding a book online before its US life+90 copyright expiration date).

Re:Who reads the manual?

[lattyware]

Rediculous.
I imagine most use The Pirate Bay.

Re:Who reads the manual?

[Xiaran]

I know of no example of these casesx actually going to court. I might point out I am also in the EU not the US and lawyers here pretty much advised us that the onyl real option was to negotiate a payment of royalties. To take it to court is a large risk... imagine you have a product that has heavily invested in video... a court could suspend or site or shut down sales while things are decided. For a startup it is simply not worth the risk.

Re:Who reads the manual?

[tolan-b]

That doesn't matter. You *need* a license to legally use h.264 commercially in the US. The fact you haven't agreed to one doesn't negate the need for one. By purchasing the camera they grant you a license to use it non-commercially. If you want a license to use it commercially you need to go and get one.

Re:Who reads the manual?

[keeboo]

It does not satisfy the license requirements: it's about usage (you'll still record in MPEG before converting), not merely distribution.

Re:Who reads the manual?

[VojakSvejk]

Well, I do have to point out that if you know of no example of these cases going to court, then it's not quite right to say you know they hold up there.

Re:Who reads the manual?

[Thinboy00]

And I'm also pretty sure the MPEG-LA doesn't want to see the issue end up in court, because they'd probably lose.

IANAL. Good point.

Re:Who reads the manual?

[mfnickster]

And in a very screwy way, that's actually how the whole patent game is "supposed" to work, i.e., find some reasonable amount to charge for a license, then do it.

Yeah, but the difference is how it used to be that the manufacturer paid for a license, sold you the product (cost of license built-in), and you used it for whatever you wanted.

Nowadays, they want to control not just how the product is made and sold, but how it is USED. That's just plain too much power.

Re:Who reads the manual?

[Xiaran]

I agree with you. I am referring to lawsuit against small startups such as the ones I have had expereince with. There are numerous examples of actions between the large players such as this. Such cases tend to reinforce the idea the MPEG-LA will win.

Re:Who reads the manual?

[grumling]

Before I started using my camera, I crossed that section out and initialed indicating that I don't agree to that term. I sent the document back to their legal department, and I'm still waiting for them to agree to the changes.

In the mean time, since I haven't heard from them, I'm going to proceed with using the camera.

Re:Who reads the manual?

[deniable]

It's probably best to leave the Morans out of this.

Re:Who reads the manual?

[jmv]

The problem is that regardless of whether you agreed to anything, you never got a "commercial" license in the first place, so you can get sued. The manual just *informs* you of the fact that what you bought is a non-commercial license. That's very different from EULAs that take rights away from you. In this case, they just inform you that you never got the rights in the first place.

Re:Who reads the manual?

[IamTheRealMike]

That's kind of vague. If you read the CNET article you can see that the MPEG-LA licensing guy says "the only person who needs to pay is the seller of the video". Nothing is said about the "user" of the video, whoever that is, presumably the viewer. The reason the cameras say non-commercial use only is because if you were using it commercially, you'd probably be selling the video and at that point you need a license.

Now the real question is, how should h264 be licensed? I don't know. Off-hand, charging a fairly low rate (2c per disc or lower) for commercial usage and not charging for non-commercial actually seems quite reasonable to me. I read that you need to also pay licensing fees if you want to implement it, which seems like double-dipping to me, but I'm not an expert so I won't judge. Suffice it to say that h264 is a very sophisticated technology that is the product of many contributions by many people and companies over a long period of time. We can debate whether software should be patentable all day, but video codecs are a pretty clear example of a piece of software that are very expensive to develop and probably do need some kind of patent protection.

Re:Who reads the manual?

[mfnickster]

We can debate whether software should be patentable all day, but video codecs are a pretty clear example of a piece of software that are very expensive to develop and probably do need some kind of patent protection.

There's nothing wrong with reasonable patents on inventions, but the point is to allow the maker to profit from producing the invention itself - and they can license other manufacturers to make similar inventions based on the patented design.

The reason this is different is because they're treating it like selling a video recorded with their invention is the same as duplicating the invention itself. They're putting limitations on the product of the codec as though you were taking away part of their business by selling an equivalent codec. I'm sorry, but I can't see that as a legitimate use of patents.

Re:Who reads the manual?

[nicolas.kassis]

I really wish I hat mod points for you. This is exactly the issue I think. Why should distributing a video be the same a implementing the MPEG-LA codecs and be bound by patents? In the end only codec writters should be liable. This is as if using a patented wheel on your car required a license. Damn, car analogies suck.

Re:Who reads the manual?

[KingSkippus]

I imagine most use The Pirate Bay.

The Pirate Bay's contention was that they were not breaking the law, that hosting an index of torrents was legal, and that other people uploading trackers of infringing material were the ones who were breaking the law. Personally, I think they're right. Obviously, the courts disagreed.

Plus, please do not forget that there were plenty of people using The Pirate Bay perfectly legally. I obtained a few Linux distributions off of there. Also, some people--independent musicians and the like--uploaded stuff to which they own the rights, and that was legal, too. Last, but not least, laws vary from place to place. Maybe uploading a tracker for Steamboat Willie is illegal in the United States, but not in Namibia.

That's the trouble with going after sites like The Pirate Bay. Sure, most of the stuff on there was illegal. But where do you draw the line? Are you going to put the onus of determining what is and isn't legal on everyone who hosts anything?

Or put another way, just because someone can record something illegally on a VCR, does that mean that we have to outlaw VCRs? Hasn't that battle already been fought and won?

Re:Who reads the manual?

[Raffaello]

Please mod parent up. The link points to the wikipedia article on Contracts of Adhesion.

In particular this quote is relevant to the discussion here:
If the term was outside of the reasonable expectations of the person who did not write the contract, and if the parties were contracting on an unequal basis, then it will not be enforceable.

So for example, if a video camera is sold as a "professional" model, then it is completely outside the reasonable expectations of the purchaser that it could not be used for commercial purposes, since "for commercial purposes" is the very definition of "professional."

So this restriction would be unenforceable against any end-user/purchaser who purchased the camera as a "professional" model.

Re:Who reads the manual?

[RAMMS EIN]

``Suffice it to say that h264 is a very sophisticated technology that is the product of many contributions by many people and companies over a long period of time. We can debate whether software should be patentable all day, but video codecs are a pretty clear example of a piece of software that are very expensive to develop and probably do need some kind of patent protection.''

I'm not so sure. I agree with you that a video codec like H.264 is a complex beast and that a lot of effort has gone into developing it, but does that make it a good idea to allow it to be patented? The same thing can be said about a lot of other software, and it seems to get developed just fine without patents - actually, many would argue it gets better the fewer patents there are. I can't think of any reason why the same wouldn't go for video codecs, and, indeed, several video codecs have been developed without the developers seeking to patent their inventions.

My personal point of view is that patents are problematic, both philosophically and practically. If we agree that we want to stimulate innovation, we should carefully evaluate what ways we have to accomplish that (current and also newly implementable). If patents turn out to really be the best possible way to stimulate innovation, I say let's stick with them. But the idea that something I think of may be covered by a patent, and that people are willing to assert those patents and sue me if I implement my idea, does not strike me as particularly conductive to innovation. Nor does the idea of having to grep the massive body of existing patents to check that my idea is not covered by any of them - especially if that means my costs go up if someone ends up bringing a successful claim against me after all.

Now, none of this means that I want to deny the creators of H.264 compensation for their efforts. I think H.264 is a great codec (it certainly seems to be one of the best codecs we have managed to come up with so far), and if they want people to pay for using it, I feel they should have that option. It is the fruit of their labor, after all. I just wonder if we can't come up with something better than the current patent system.

Re:Who reads the manual?

[StuartHankins]

Mod parent up. This is like a chainsaw manufacturer wanting a fee when you used a chainsaw to create art. The more I hear about their licensingpracticesthe less I like them. When I buy a camera I expect to be able the pictures to be used anywhere, anytime,for any reason without some bum coming out of the corner wanting a handout.Force the camera manufacturers to admit ON THE BOX that you're just purchasing the videocamera not the rights to use the results and see how quickly this gets straightened out.

Re:Who reads the manual?

[Artifakt]

The poster you are disagreeing with was trying desperately to find a loophole. It's the "What you said only applies in 99.9% of all cases, so I'm really right and you're really wrong" defense. Ooooh! Only in East Texas, where just about everybody in the industry files because they know what the judges will do. Ooooh! Only in the USA, like nobody in other countries is influenced by what happens in the USA.
    For the same reason, you were modded troll in one of the worst abuses of the mod system I have ever seen, and I'm sure somebody has enough points left to mod me the same way, and will. You were somewhat inaccurate, mind you, as there are lots of countries (particularly in western Europe), where copyright lasts as long as in the US. As I post this, mikael_i is oddly marked as a +2 troll as well. (He's wrong but he probably doesn't deserve that appellation, and it's obvious there has been a mod point battle here.).
     

Re:Who reads the manual?

[Chaos Incarnate]

Umm..., no I don't have the option to return it for a refund; the store won't take it back once opened.

Re:Who reads the manual?

[MurphyZero]

Yes but they already been granted a license for non-commercial use. If it not distributed in the MPEG format, is it a commercial use? The commercial use is the Ogg Theora format in this case, isn't it?

Re:Who reads the manual?

[BenBoy]

Great. You made a hammer. It's a great hammer. I bought it. Doesn't mean you own my house, though. The problem here, as implied by the parent post, is that the payment structure here doesn't isn't just allowing the maker to profit from his/her invention, but to profit from others' inventions. It discourages innovation, rather than promoting it as patents are meant to.

Re:Who reads the manual?

[mikael_j]

It's a physical device with the capability to decode MPEG2 video, that the manufacturer is required to pay for a license in that case is a bit different from forcing anyone who distributes video to pay for a license.

Re:Who reads the manual?

[devent]

How does it make any sense? Isn't it the camera manufacture that needs a commercial license to use their codec in their commercial product, i.e. the camera? Without a codec the camera can't do anything, it is not useful.
It's like a calculator producer ships his calculators with a software but the customer don't get a commercial license with it, so he can't use the calculator in his business.

I'm using the camera not their codec. The camera gives me a video, which I can decode to watch, or decode to raw data and encode it to any other video codec. And a license to decode I'll get with the software that I buy. How can they restrict what I can do without me ever using their codec to encode anything?

Re:Who reads the manual?

[ceoyoyo]

Distributing your video in an MPEG-LA format and shooting it in one are two very different things.

They'd be hard pressed to even prove you did so.

Re:Who reads the manual?

[Daengbo]

This isn't some kind of EULA situation where a provision in the contract will be thrown out: the cameras are stated to be for non-commercial use because no one paid for a commercial license. Suing would be quick and dirty, and the user would be at fault. The user could possibly then sue the manufacturer for misleading claims (TFA's "professional camera" that doesn't allow professional shots), I guess, but the user would definitely be unlicensed and therefor have to pay.

Take a look at Gregory Maxwell's response to the accusation of OGG falling under patents. He has a good bit to say about MPEG-LA and anti-trust, as well.

Re:Who reads the manual?

[gaelfx]

OK, I'll throw in my lame attempt at a car analogy.

It's the equivalent of a tire manufacturer with a patent or two on how their tires are made (presumably some chemical process/formula that makes it differ in some minor way from others), charged royalties to the car company for using the tires with their cars, the gas company for every mile driven using their gas to turn the tires AND the consumer for every rotation of said tires. And if some poor kid decides to tie one of those tires up to a tree and swing on it? Ho-ho-ho, christmas come early, cause that kid is gonna spend the rest of his natural born life with garnished wages for his unlicensed misuse of their technology.

Laugh now, but I'm about to go take down my tire swing.

Re:Who reads the manual?

[arose]

The problem outlined in the article is that your camera (a physical device with the capability to encode MPEG2 and/or H.264) manufacturer has negotiated a license that requires you to pay for the privilege of using your video from your camera for your commercial purposes.

Re:Who reads the manual?

[arose]

Read the article, this is about tire manufacturers saying that you can only use the tires you bought (even the ones that say "professional racing") for carting around your family. If you want to put your tires on your semi or F1 you have to negotiate with the patent holders.

Re:Who reads the manual?

[coppro]

This isn't some kind of EULA situation where a provision in the contract will be thrown out: the cameras are stated to be for non-commercial use because no one paid for a commercial license. Suing would be quick and dirty, and the user would be at fault.

No. There is no provision in the contract to buy a camera stating that it is for personal use only, unless it's clearly marked on the packaging. This means the license could only bind the user if the patents are valid. If they are found to be invalid, there is no consideration and so the license cannot bind the user to anything. If the patents are valid, the user might still be found not to be subject to the license (since they would have to agree to it, and most users aren't even aware of the license's existence - they could still be found to agree without knowledge if there was significant notices attached to the camera that most people would notice stating it could only be used if you agree to the license, but to my knowledge no camera is like that), but then they would be at fault for patent infringement, which generally does not require intent.

Re:Who reads the manual?

[517714]

If Eli Whitney's cotton gin were still covered by patents, the business model would probably be to license based on the bales of cotton ginned in addition to the fee for each machine - in this way a self contained commune would still have to pay royalties based on how much they used the machine. The value of the cotton ginned would be a poor metric since the user could sell the cotton at a loss, or the cotton could end up in hundred dollar bills. If I chose to put my gin on display in a museum or a gin repair school, would Whitney be able to impose a new previously undisclosed licensing fee based on the revenues of my museum or school?

Photography and movie making are artistic endeavors; the contribution of the codec toward that end is not significant and license fees should not be based on the value of the product, but on the number of frames or length of the film or similar measure. Would anyone think it appropriate for the manufacturer of film or paints to make money from the photographs or paintings created by others? How would the manufacturer deal with collecting on second sale?

Since the consumer is obligated to meet the terms imposed in a license agreement, isn't the manufacturer obligated to disclose the full terms? Failure to disclose fees outside of the original terms strike me as unconscionable, and basing those fees on the commercial value of the end product doubly so.

One question for the lawyers out there. If the license agreement is between Canon and me, and I violate that agreement, how does MPEG-LA have any standing to negotiate with me for fees?

Re:Who reads the manual?

[Daengbo]

Although the patents are software, they're still narrow and specific. These aren't patent trolls -- the patents are well-known and disclosed as part of a standard. the license fees are also public knowledge, and as you state, patent infringement doesn't require either prior knowledge or consent to a contract.

If you use this "non-commercial" camera to produce commercial work, MPEG-LA can just come up to you and demand that you pay the licensing fee, and you're pretty much screwed. They will do it, too, if it's worth their time in fees or publicity.

We can only hope that software patents get overturned, but it doesn't look like the developed world is heading in that direction, does it?

Re:Who reads the manual?

[pcjunky]

Yes this was hashed out in court years ago. The analogy I read was a lathe maker wants royalties on everything made using the lathe he sold. Courts ruled you couldn't force these kinds of restrictions on people. This even extended to runtime libraries that would need to be included with the compiled code. Didn't work then won't work now.

Re:Who reads the manual?

[quadrox]

You were very close to getting a downmod from me there, stop predicting how I will moderate or I will damn well make sure that you get to be right.

I felt your post was too valuable to really downmod, but please stop this "I will get modded down for this" whining - take it like a man.

Re:Who reads the manual?

[Simetrical]

Outside the US there are no software patents, therefore h.264 can't have any patent over it, therefore MPEG-LA can't threaten anybody for anything.

Wrong. The MPEG-LA claims patents in many countries, including much of Europe. Boris Zbarsky of Mozilla looked at the huge list of H.264 patents, and came up with the following countries where some aspect of H.264 is patented:

• Europe: Germany, France, UK, Finland, Italy, Sweden, Belgium, Bulgaria, Liechtenstein, Austria, Czech Republic, Denmark, Spain, Hungary, Ireland, The Netherlands, Poland, Romania, Portugal, Slovenia
• Asia: Japan, China, South Korea, Hong Kong, Singapore, Taiwan, India
• Americas: Canada, Mexico
• Australia

He said he only looked at the first 6 pages out of 43, and wasn't looking very carefully, so there are probably patents in many more countries too. Needless to say, they only need one patent per country to force you to pay royalties.

Re:Who reads the manual?

[mr_matticus]

The H.264 patents aren't software patents, so that whole argument goes out the window. They're method patents, which are valid everywhere there are patents, which is just about everywhere.

(in most of the world copyright lasts for 50 years

Where is this fantasy land? US copyright terms were expanded as a result of international treaty obligations. The Sonny Bono thing was largely superfluous, but the Berne Union, which covers most of the world (160-something out of 191 countries, in fact) requires all members to have a term of life plus 50.

before its US life+90 copyright expiration date

It's life plus 70 in the US. The life plus 50 required by international law plus the 20 year extension.

Many countries around the world also have life+70 terms (in France, it's possible to have life+100).

I get that you wanted to rant about copyright, but you display shocking ignorance of the subject worthy of being an American. Perhaps you should be locked out of the entire Internet.

Re:Who reads the manual?

[sjames]

However, since you bought the device, the very idea that you don't have the right to do with it as you will (including making money) is perverse to say the least.

The obligatory car analogy. I buy a used car free and clear. It is now MY car. I decide to paint it yellow and let people hire me to give them a ride. Wouldn't it be absolutely perverse if Ford (or whoever) then came to me and said I must pay them an extra ten grand even though I already bought the car free and clear (and not even from them)? Furthermore, they expect a percentage of the fares. I bought it free and clear but effectively a third party jumped in years after they sold the car to the person I bought it from and claim that I am merely renting the car and never really owned it. Except if it breaks down suddenly it's my car again and they will have no part in paying to fix it. All that and I NEVER at any point had any contact with them at all until they showed up at my door with their hand out.

The common understanding when a product claims to be not for commercial use is that it is not designed to stand up to such heavy use and the warranty won't be valid. That's perfectly rational and quite a different thing.

Re:Who reads the manual?

[butlerm]

Surely that is only true if the seller has the right to sell the thing in the first place.

The whole point of the exhaustion doctrine is that end users do not need patent licenses unless the circumstances explicitly indicate otherwise. If the MPEG-LA people want to make the circumstances explicit, they can do one of two things: (1) they can require that all such cameras be leased rather than sold, or (2) they can enlist retailers as their agents to engage each purchaser in a binding contract to the effect that they only have a license for non-commercial use under certain time limited terms and conditions.

Otherwise it is highly likely that the exhaustion doctrine means that any owner of a finished item has an implied license to use the device in any way they see fit, if the manufacturer had any sort of patent license at all. A court could rule otherwise (hence the request for a citation), but as with shrinkwrap licenses in general the this appears to be an unsettled area of law. Wishful thinking by a bunch of intellectual property attorneys doesn't change that fact.

Re:Who reads the manual?

[bws111]

35 U.S.C. 271 Infringement of patent.

(a)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.

Now, in most cases (the stuff in your house) the manufacturer has paid the license for you, and so you have a valid license. However, in this case the manufacturer paid for a CONSUMER license, not a commercial license. The consumer license passes to you. This is made clear in the manual. You still do not have a valid COMMERCIAL license, so 'uses without authority' applies.

Re:Who reads the manual?

[rdnetto]

Outside the US there are no software patents, therefore h.264 can't have any patent over it, therefore MPEG-LA can't threaten anybody for anything.

Wrong. Take a look at http://en.wikipedia.org/wiki/Software_patents. Japan, Australia and South Korea all allow software patents.

Re:Who reads the manual?

[bws111]

Thanks for the link. However, I think I reached a different conclusion than you. I take it from your posts that you think exhaustion applies in this case, and you are using the LG case to bolster your argument. However, the reason LG failed in their attempt to limit exhaustion was because the court found there was no non-infringing use if exhaustion were not applied.

It seems to me that a more relevant case would be one referenced in that same article: General Talking Pictures Corp vs Western Electric. In that case, the Supreme Court found that a patent holder could distinguish between home and commercial use, and license manufacturers accordingly, as long as there was non-infringing use, and the limitation was communicated to the consumer. In that case, Western Electric licensed some vacuum tube technology to some manufacturers for home use, and others for commercial use. GTP (a commercial user) bought equipment from a home-use licensee and used it commercially, even though they knew they were not allowed to. WE sued and won.

According to Wikipedia: The majority upheld the arrangement as a well-known, legitimate expedient: “Patent owners may grant licenses extending to all uses or limited to use in a defined field.” The Transformer Company was only a nonexclusive licensee in a limited field, as it and General Talking Pictures knew. The Transformer Company had no rights outside its licensed field, and thus “could not convey to petitioner [General Talking Pictures] what both knew it was not authorized to sell.” That seems to be an exact corollary to what MPEG-LA is doing.

Re:Who reads the manual?

[RedWizzard]

I agree it remains to be seen as to what degree this will or will not be enforceable. This is a sort of reverse tivoization though if it works. Sure we sold you the hardware and you have the right to do anything you want with it; never mind we control the software and the hardware is worse than useless with out it.

I can see how the camera manufacturer may have a claim against the purchaser as the purchase of a camera can be taken to be acceptance of the license agreement for the software in the camera. ANAL, but I don't see how the MPEG-LA has any claim as they were not party to the sale.

I don't really like software patents but I can accept that the work that went into developing algorithms as complex as video codecs deserves some protection. The problem here is that the MPEG-LA is not just claiming the right to fees from software developers who want to implement their algorithm, they're claiming the right to fees from end users using the software in the process of creating video, apparently even if the final saleable from of the video doesn't employee their codecs. That's like a pen manufacturer claiming royalties on a book because the author used one of their pens to write the first draft.

Re:Who reads the manual?

[dgatwood]

In the original finding (northern Cali), it was held that exhaustion applied because the product had no substantial use beyond an infringing use. The SCOTUS affirmed that. That seems to apply also to a camcorder; it has no substantial use other than to record and play back video, which in absence of a license, would be infringing.

Re:Who reads the manual?

[bws111]

No, that case has very little to do with this case. In the case you referenced, LG licensed some patents to Intel for use in some chipset, but then tried to put the restriction on that said you could not use the chips in a computer without buying a license. The court found that there was no non-infringing use of the patent if you couldn't put the chips in a computer, so it struck down that restriction.

In this case, millions of home users of cameras clearly demonstrate that there IS non-infringing use, even with the restriction.

A more appropriate case is General Talking Pictures Corp vs Western Electric . In that case, a patent holder (Western Electric) had some patents on vacuum tubes. It licensed those patents to two groups: manufacturers of HOME equipment, and manufacturers of COMMERCIAL equipment. The HOME manufacturers were required to include a notice that the equipment was licensed for home use only. An operator of movie theaters (General Talking Pictures Corp) purchased some equipment from a home manufacturer (The Transformer Company), and used it in movie theaters. Western Electric sued for patent infringement. The case went all the way to the Supreme Court and Western Electric won. According to Wikipedia: The majority upheld the arrangement as a well-known, legitimate expedient: “Patent owners may grant licenses extending to all uses or limited to use in a defined field.” The Transformer Company was only a nonexclusive licensee in a limited field, as it and General Talking Pictures knew. The Transformer Company had no rights outside its licensed field, and thus “could not convey to petitioner [General Talking Pictures] what both knew it was not authorized to sell.”

In other words, a patent holder CAN create separate licenses for commercial and non-commercial use, and you CAN be sued for not having the correct license, and a similar case HAS gone all the way to the Supreme Court.

GIF shenanigans

[wigaloo]

It was exactly these kinds of shenanigans that led to the development of PNG as a replacement for GIF in Web browsers. Hopefully the same thing happens here (broad acceptance of a new standard), whether the replacement is Theora or something better.

Re:GIF shenanigans

[jonwil]

Anyone that comes up with a video codec that is as good as H.264 WILL get sued by MPEG-LA if they start using said codec in places where the use would require a payment to MPEG-LA if H.264 was used instead.

It doesn't matter whether the codec actually infringes on any MPEG-LA patents, anything that threatens their revenue stream will be sued by people who likely have more resources than whoever developed the codec. (and because the US patent system is so broken, even if you can prove you didnt violate a single MPEG-LA patent, the MPEG-LA will still be able to convince a judge in texas to force you to hand over big sums of cash)

Re:GIF shenanigans

[bhtooefr]

There's 1135 patents worldwide that are essential to H.264, 1114 of which are active, 162 of which are active and in the US.

Here's the list: http://www.mpegla.com/main/programs/avc/Documents/avc-att1.pdf

The trick is probably to use a 20 (or maybe 25, to avoid old submarine patents) year old technology to get around it.

Re:GIF shenanigans

[Yvan256]

MPEG-LA better not mess with the BBC. They've got the Doctor on their side!

Camera for non-commercial use only?

[dhasenan]

How does that work? If a camera says it's for non-commercial use only, do I need to sign a contract that says I won't use it for commercial films? What if I sell my camera to someone else? Does the contract require me to sign over that contract to the buyer? If I fail to do so, what can they do about the buyer using the camera for commercial purposes?

Re:Camera for non-commercial use only?

[Draek]

IANAL, but I believe you can use the actual, physical device to record any kind of movie but then if you distribute it commercially you become liable for patent infringement, as the camera maker only paid for a non-commercial h.264 license rather than the 'full' one.

If that's the case, then in theory it'd be possible to record the movie, transcode it to a Free format such as Theora or a closed one you *do* own a commercial license for, redistribute *that* file instead, and be legally in the clear. But as I said, IANAL, this is not legal advice and all that crap.

Re:Camera for non-commercial use only?

[Anonymous Coward]

That note in the manual won't hold up in court, but the licensing demands will. What this means is that the MPEG-LA will get your money and then you can try and get your money back from the manufacturer of the camera for not mentioning this unexpected limitation prior to the purchase (i.e. selling you a device which is not fit for the naturally intended purpose.) You'll probably get the price of the camera back, but not your "damages".

Re:Camera for non-commercial use only?

[91degrees]

You legally need explicit permission from the patent holders to use the CODEC for any purpose. The manufacturer made an agreement that unilaterally grants you non commercial rights but the rights are limited.

If you use it commercially the manufacturer doesn't give a damn, but the patent holders can sue you.

Wow, my uncool new camera is suddenly more cool...

[luckytroll]

I recently scoffed at the 720p MJPEG codec used by my shiny new Pentax Optio camera.

Who knew that its ancient and inefficient CODEC is its saving grace when it comes to the topic of TFA.

But seriously, this is a case of Moores law making old stuff (mjpeg) work even for modern resolutions. I lacks the elegance of modern compression, but as long as the camera has fast/huge storage and fast raw processing power, we can use it and probably be happy with it too. The place where the fancy compression is always going to be key is distribution where the bandwidth is limited, be it spinning off a disk or streaming off the net.

The best defence from old laws and bad EULAS

[Bob_Who]

http://www.eff.org/ is IMHO a great place to begin dealing with old laws and new media and technology. They are like the ACLU for geeks, and aim to limit corporate or bureaucratic grip on internet and new media technologies. If the FCC or other government agency can't figure it out, then at least these very smart legal minds will watchdog these issues of the fine print: licensing, patents, privacy, fair use, etc.

the details on http://en.swpat.org

[ciaran_o_riordan]

Video is, IMO, the area where software patents are doing the most harm, and the problem won't be solved by the anti-troll projects, and it won't be solved by raising examination standards. H.264 is covered by 900 patents. The only way to make it patent free is to abolish software patents.

• MPEG video formats
• Harm to standards
• HTML5 and video patents
• Audio-video patents
• Campaigns to avoid certain patented ideas
• Ogg Theora

swpat.org is a publicly editable wiki, help welcome.

Re:Kumbaya the lawyers.

[Bob_Who]

Or just change the law. No more copyrights-patents.

...and no more war! and no more hunger! and no more cable and cell phone bills, and TOTO too!

Re:just give up already

[Ash-Fox]

no one is going to pick your stupid theora code

http://www.neowin.net/news/google-investing-in-theora-for-mobile-devices
http://mozillalinks.org/wp/2008/07/native-ogg-vorbis-and-theora-support-added-for-firefox-31/
http://www.gossamer-threads.com/lists/wiki/wikitech/167167

Please provide sources to backup your statements. Thanks.

non infringing codecs

[91degrees]

MPEG-LA has insinuated in the past that they own so many patents around mpeg2 and h.264, that is simply not possible to build a video codec that it doesn't infringe on their patents.

This is blatant rubbish. A full MPEG 1 implementation can be implemented since all patents relating to that have expired. A number of the MPEG2 patents have expired so it may be possible to extend this using those. So that gives at the very least some basic space conversion and final compression algorithms that can be used. Even a few of the MPEG 2 patents have expired. We're not looking at a particularly modern CODEC yet, but this should at least give us better quality than an MJPEG stream.

Re:Well....

[tolan-b]

http://en.wikipedia.org/wiki/Open_Invention_Network

Doesn't necessarily cover all open source but it's basically what you're talking about in the first part of your post.

Is this a problem outside the US?

[WarwickRyan]

Thankfully we don't have software patents in Europe, but does that mean we won't suffer from this?

Realistically....

[DavidR1991]

...transcode from one format to another. The article claims you are "already liable" if you do this - but here's the rub, unless you announce the camera you made the film with + what it was originally encoded with, who the hell is going to find out?

Re:Realistically....

[Dachannien]

Besides that, I fail to see how you would be on the hook for royalties covering more than one recording - the one you made originally, before you transcoded into an unencumbered format. TFA's author seems to take it as a given that you would still owe for every sold copy of the transcoded recording just because the original recording was in an encumbered format.

Re:Realistically....

[cpghost]

And what if the cameras watermark their serial numbers in the videos (something like the yellow dots by color laser printers), and those watermarks survived the transcoding process?

Re:Realistically....

[Qzukk]

how you would be on the hook for royalties covering more than one recording

Because companies think they are entitled to a cut of any revenue they "helped" you make, whether they are ISPs thinking they deserve a cut of Google's cash because they deigned to grant their subscribers access to Google's website, musicians thinking they deserve a cut of a cafe's cash because a radio was playing in the back, or video encoders who think they deserve a cut of a movie's revenue.

I wonder how many of these people who feel they deserve this entitlement also think that guy who invented the CD laser diode and sued his company for a share of the cash was also entitled to it.

civil disobedience

[zogger]

Some times to get laws and attitudes changed, mass civil disobedience comes into play. Some laws get on the books that are just so freaking lame, stupid and unfair that they invite mass disobedience. An example would be alcohol prohibition, where so many people disobeyed the law willingly that eventually it was changed. Another example would be racial discrimination. Mass marches and protests and willingly breaking the law obviously and in public, inviting arrest or worse, eventually worked to a large degree.

This is a situation where something like a mass "commercial photoshoot" might work. Thousands of camera owners all get together in a planned protest, video each other, exchange copies of the videos with each other for one dollar, with a big "neener, neener, do your worse" pronouncement. Lather, rinse, repeat. Keep doing it until these software patents are eliminated as just being too stupid and unfair and harmful. They certainly are not advancing the useful arts and sciences, so they fail on that critical aspect of the law.

I mean, this is complete bullshit. Analogy, in ye olden days with mechanical typewriters, if you used brand X, that had some patents on it, you could be an amateur or commercial author according to some writing guide "license to type", but if you used brands Y or Z, that had some other patents, with another variant on the "license to type", you had to pay a fee to the typewriter manufacturers cartel with the Y or Z patents if you wanted to sell your work? Or your publisher had to pay or..what??? Boooolll sheeet.

Re:Well....

[bhtooefr]

The other thing is, in this specific case, H.264 probably infringes on some of On2's patents for VP3.

Google now owns On2, and therefore owns the VP3 patents.

Theora is based on VP3, with an unlimited royalty-free license to the VP3 patents.

Google is financially supporting TheorARM, which is meant to be a high-performance Theora decoder for ARM CPUs.

Google doesn't have very many patents, and they have a lot of money, to buy lawyers.

Google is probably the best company to push the button, and start Global Thermonuclear Patent War - they've got the least to lose (they can't lose many patents, not having many,) and they've got some of the most to gain.

All it takes is suing MPEG LA, and not going for just royalties like a patent troll would, but going for the destruction of MPEG LA. Then everyone starts suing everyone, and we get Mutually Assured Patent Destruction. Which is good for everyone.

Re:just give up already

[Wildclaw]

I find the whole Theora thing amusing. You have a bunch of people trying to push for hardware support for a codec that pretty much no content producer (pirate or mainstream) uses. I can understand if you don't have the backing of mainstream producers, but if you can't even get a fraction of the pirates on your side, then you simply don't stand a chance.

h.264

[C_Kode]

If h.264 becomes THE web standard, then it should be striped of it's current royalty license and possibly be moved to the public domain for monopolistic reasons.

Now, I don't necessarily believe it should be moved to the public domain due to the fact that it has author and ownership, but having that much power of what is a standard is just wrong. Especially when the owner is trying to use it to dictate and harm competition the way they are.

Re:just give up already

[vadim_t]

Well, it has to start somewhere.

Producers won't release video in the format if nobody can play it. However, it's easy to add support for playing, especially in software, even if nobody ends up using it. If nobody tries to do anything, nothing will ever get done.

Re:LLCs, that's the ticket.

[Frank T. Lofaro Jr.]

Read about piercing the corporate veil.

It applies to LLCs too.

Read about the case of Western Blue Sky LLC.

Re:Wow, my uncool new camera is suddenly more cool

[zippthorne]

Hear, Here!

With disk space the way it is, (i.e. *cheap*) I don't know why people would even want a camera that records in a format that uses interframe compression.

I got a camera not long ago that still used DV tapes for this very reason: hdd and dvd all seemed to use codecs that would make editing frustrating, even though they had higher byte-capacity (and therefore vastly higher storage capacity due to the higher compression...)

That would not hold in europe

[aepervius]

1) it is a software patent

2) there is no EULA when you use your camera

3) I am pretty sure it is non valid, in europe, to impose a contract/EULA in an item which is only viewable AFTER the sale.



That said, there might be problem for the US.

Re:just give up already

[Ash-Fox]

Optical media, or will a floppy do?

Something over the hyper text transfer protocol would be best. If you could provide a uniform resource locator to it, that would be grand.

Lawyers.

[gd2shoe]

Lawyers might not be the problem, but the problems are lawyers. Think about it.

Who comes up with the bizarre contracts, cowardly EULAs, and wacky tort ideas? Lawyers. Who decides that this nonsense is valid law? Usually judges, almost all of whom are lawyers. Who writes the law in the first place? Politicians, a great many of whom are lawyers. Who decides who is eligible to run? Sometimes lawyers (with the implicit threat of court battles).

There are many great lawyers out there, fighting for freedom and justice on the small (but very meaningful) scale. We need more of such people. Regardless, there is a particular variety that is causing mayhem in our political system. We really need to find a way to --err... dissuade them.

Europe is worse, not better

[pydev]

Outside the US there are no software patents, therefore h.264 can't have any patent over it, therefore MPEG-LA can't threaten anybody for anything.

What makes you think these are software patents? A lot of the devices involve hardware patents.

The issue with h.264 has always been the US,

Many of the patents are held by European and Japanese corporations and research labs.

(in most of the world copyright lasts for 50 years, for instance, but try finding a book online before its US life+90 copyright expiration date).

Wrong. The Berne conventions (as in Berne, Europe) created much of the current insanity, eliminating the requirements for registration and copyright notices, recognizing so-called "moral rights", and creating a lot of other restrictions. Berne required life + 50 years as the minmum term from all signatories. Europeans started copyright insanity and threw their imperialist weights around to impose it on the US and other nations. The US and the UK tried to resist for decades, but eventually just gave in. Today, many publishers and media organizations behind the current push are European. The patent situation is similar: the insanity started in Europe in the 19th century, was imposed on the rest of the world, and Europeans play the political eand economic game really well, benefitting greatly while blaming the US. And software patents are far from dead in Europe. either.

This is at least as much a European problem as it is an American one. But European politicians are masters at shifting the blame.

Re:Wow, my uncool new camera is suddenly more cool

[metalmonkey]

Another added benefit of the MJPEG codec is that image quality is actually better, by including the entire image in every frame and not throwing information away with motion prediction. Makes editing easier also, not having to worry about key frames.
Yes this obviously used more data.

Re:how it makes sense (to them)

[devent]

But I am, as the buyer of a camera, not an "end-user". The end-users are the camera producer, who need the codec to encode their data. I'm the end-user of the camera I buy.

My understanding is that the camera producers are violating the license agreement because they are clearly using the codec in a commercial way and need a commercially license.

I, as the user of the camera, don't need or care about the codec used internal in the camera. I'm only concern about the codec if I need to watch or decode the video, but since I'm buying a video player software I'm not using their codec directly either. The end-user for the decoder is the producer of the player software, not me.

In conclusion, I'm never using their codec, neither for encoding nor for decoding. I'm using a camera which happens to use internal their codec but normally I have no knowledge about what codec is used.

The only way I should be concern with their license is if I'm writing my own library or application that uses their codec to encode or decode videos.