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Can We Legislate Past the H.264 Debate?
Midnight Warrior writes "We could solve the H.264 debate if a country's legislature were to mandate that any patents that contribute to an industry-recognized standard were unenforceable in the application of that standard. Ideally, each standard would also be required to have a 'reference design' that could be used without further licensing. This could also solve problems with a ton of other deeply entrenched areas like hard drives, DRAM, etc. RAND tries to solve this strictly within industry, but both the presence of submarine patents and the low bar required to obtain a patent have made an obvious mess. Individual companies also use patent portfolios to set up mutually assured destruction. I'm not convinced that industry can solve this mess that government created. But I'm not stupid; this clearly has a broad ripple effect. Are there non-computer industries where this would be fatal? What if the patents were unenforceable only if the standard had a trademark and the implementer was compliant at the time of 'infringement'? Then, the patents could still be indirectly licensed, but it would force strict adherence to standards and would require the patent holders to fund the trademark group to defend it to the end. In the US model, of course."
What's an "industry-recognized standard"? Who has the authority to make them? Defining this could raise more problems than the ones this whole thing is supposed to solve...
My first program:
Hell Segmentation fault
Can we say that any property rights - intellectual or otherwise - for the ingredients of Cheetos, ramen and anime are unenforceable. Then I we can all watch free anime DVDs and eat Cheetos and ramen. Also the telco should give me unlimited download bandwidth and stores that deliver ramen and Cheetos should be prevented from charging.
echo -e 'global _start\n _start:\n mov eax, 2\n int 80h\n jmp _start' > a.asm; nasm a.asm -f elf; ld a.o -o a;
The world has moved on. People are already playing their x264 videos and sharing their mkvs. This IS the standard for video. My linux-based sammy TV plays the files just fine.
If you want Linux to play catch-up and odd-man-out yet again and wining about stuff that end-users will never care about like licensing, go on. The world doesn't care about your weirdo software religion and never will. This proposal requires the entire world to change to work. I wouldn't hold my breath for it.
Is completely clueless trolling in the summary the new standard on /. now? What does the fact of a "standard" being "trademarked" have to do with patent issues? How do you compensate patent holders if you invalidate their patent ex post facto? What "mess the government created"? Holy cow, this summary is a new low. Besides, if the author of the summary explicitly states that "he is not stupid", well, we can pretty sure about his intellectual capacity.
Ubi solitudinem faciunt, pacem appellant.
I'm not convinced that industry can solve this mess that government created.
You people are like children. Mommy, let us do this! Mommy, let us do that! Then things don't work out quite the way you wanted them to. Mommy, it's all your fault!
Yes, we certainly could declare patents on industry-standards were un-enforcable. But that would deprive a lot of people of a lot of profit, so it will never happen.
Anybody want my mod points?
and eliminate Software Patents entirely.
Only two things are infinite, the universe and human stupidity, and I'm not sure about the former. (Einstein)
You're a smartass. Everybody hates a smartass.
From scarped cliff or quarried stone she cries "A thousand types are gone, I care for nothing, no not one."
"I'm sorry sir, your idea has become too successful, we're going to have to take it away from you now."
Is this some sort of joke? This is similar to claiming that is too important to fail, thus the government should take it over and run it "for the people." The real solution is to make sure you can't get patents on trivial algorithms that anyone would come up with, when presented with a particular problem. Not to take away genuinely innovative approaches that just so happen to become popular.
Yes, it's true that most software patents are trivial. But not all are, and the ones that aren't should be protected just like any other innovation or invention.
No it doesn't. They could choose to withhold permission for it being included in the standard. Which is really the point, a lot of these formats would never have become standard if they had been forced to pay royalties on it from the get go. GIF and JPEG for instance ended up having issues, not to mention somethings with submarine patents where the corporation holding the patents lies about it.
The problem is the abuse of questionable patents that aren't disclosed or utilized by the entity holding them then holding the world hostage after the standard takes off. All standards should be unencumbered and free to use. You want to be paid? Fine, just do it with something that isn't a standard.
It's an excellent idea that makes huge whopping loads of sense; therefore, it will never even be authored as a bill, much less considered on the floor of any legislative body.
Violence is like duct tape. If it doesn't solve the problem, you didn't use enough.
No, it wouldn't. Despite pleas from conservatives to the contrary, nobody forces these people to allow the use of their patents in standards. They allow it because it gives them the chance to file massive law suits later on for infringement. Meaning that people have to pay for the license, suit or be left unable to use the standard.
More appropriately, when does something transition from a "good idea that is sparsely implemented" to an industry standard? If you set the criteria as "defined by an industry organization" (such as ANSI, ASNE) then why would a company allow patented tech into the standard? Would MILSPEC constitute an industry standard? I think the battle point would just change, with companies wanting larger license fees early because they'd lose them later; which would limit the adoption of a standard. In addition, they would have little incentive to allow free licensing to encourage adoption since there's no money at the other end.
I'm not sure what the answer is - perhaps a compulsory license fee that is the same for all users of the technology? Of course, then I could charge a high upfront one time fee, rather than a per unit fee, effectively locking out newcomers.
Of course, eliminating submarine patents would go a long way. If a person has applied for a patent, they should be required to notify a potential infringer when they first notice the infringement, not after the patent being granted. After a certain time limit, the infringer should be grandfathered into non-infringement. If they have been notified, and the patent subsequently is upheld, then the are liable if they failed to modify their infringing item. A separate arbitration board would hear arguments, and if they decide the patent appears to be valid then either they settle or the infringer posts a bond set by the panel. The winner of the eventual suit gets the bond. I would even say that granting the patent, and winning a challenge, would be enough to get the patent holder the bond; since a panel of experts decided the infringement issue earlier but did not rule on the patentability. Alternatively, they could settle both issues at once
I'm a consultant - I convert gibberish into cash-flow.
I think the sheer complexity of this approach alone would have everything everywhere tied up in litigation for years. That alone is a mark against it.
Instead, let's use a simpler method, and take away patents from software, methods, or any other intangibles. That will take away the current minefield where almost any nontrivial software is technically in violation of a patent. And it would make sense.
A brilliant new design for a computer (or a piece of it) can be patented. (Note this means a quantum leap, not an incremental improvement). In the same vein, if you came up with a brilliant new design for a guitar, causing it to weigh 40% less and have a tone quality far better than anything on the market, you could patent that guitar design.
However, if you came up with some brilliant new chords that this guitar can play, you can't and shouldn't be able to patent those. Even if they're brilliant, even if you're the first to ever play them. You can copyright any songs you write with them, of course. But you can't keep someone else from using the same concept in their own songs.
Software is the same as the music. It is the unpatentable intangible played on the patentable tangible. You can copyright it, but you should not be able to stop someone from independently create something interoperable.
To fight the war on terror, stop being afraid.
a lot of these formats would never have become standard if they had been forced to pay royalties on it from the get go.
Pretty much all the places where h.264 is used, it had to be paid for from the start, and it was still chose, because it is very good.
Patent legislation in the USA is very unclear on questions about whether it should apply to software. That's why it's always ignored in the debate, with everyone focussing on the rulings from the CAFC and the Supreme Court. There is good grounds for saying the legislation excludes software ideas, since the Constitution only allows patents where they promote the progress of useful arts - and all the studies say software patents impede such progress.
A flat exclusion of software from patentability is one solution, and its the best one. Other possibilities include an exclusion of liability when using ideas for the purpose of compatibility. That wouldn't fix all problems, but it would fix the h.264 and other file format problems.
Related info on en.swpat.org:
Expert in software patents or patent law? Contribute to the ESP wiki!
So, basically, your idea is that if a patented "invention" turns out to be really important and useful, the patent should be rendered unenforceable. Yeah, good luck sneaking that proposal through ;-)
Oh sure, lets get the government involved in this! Because they're:
Efficient
Looking out for the people
Focused
Not interested in pork
Uninfluenced by patent holders
Genius is one percent inspiration and 99 percent perspiration, which is why engineers sometimes smell really bad.
We could solve the H.264 debate if a country's legislature were to mandate that any patents that contribute to an industry-recognized standard were unenforceable in the application of that standard.
I have read until here. What you propose is unfortunately not allowed under the TRIPS agreement, which requires that once that a patent has been granted, the holder must be able to enforce it. While there can be exceptions to this rule, I highly doubt that a country trying to get rid of the H.264 patents that way will get away with it.
If a legislative body wants to fight these patents, the best thing it can do is to require the use of unencumbered technologies in the government.
OS Reviews: Free and Open Source Software
I don't think it'll in any way be practical to expropriate that IP, which is essentially what you are talking about. However, that is not the biggest problem with patents. The biggest problem with patents is that a standard is never proven patent free, only that no claim of infringement has been made against it yet. This is why I would like standards bodies to have the ability to call for patents, and any patent claim not made within a reasonable time frame is forfeit as related to that standard. A relevant current example is Theora - they claim it's patent free but is it really? What if someone like ISO or ITU-T could publish the standard, demand that any patent claims must be done within three months and if none were made you knew with 100% certainty that any later claims are null and void? It would be wonderful. I don't see this as a way of freeing IP, but it would go a long way of reducing patent FUD and submarine patents. Even if it should turn out to be patented you know which bits and could work to remove those and try again.
Live today, because you never know what tomorrow brings
Some of the founders were worried that the patent system wouldn't allow enough time for inventions to spread, as America had a much greater land mass than England. That's how out of date this idea is.
Software patents are totally worthless. All they do is impede progress. Consider a software patent on controlling a lawn mower. You could patent this idea. Could you patent lawnmowers? Of course not - patenting the idea of cutting grass can be laughed off by everyone, except for a few lawyers and jurors in East Texas. Adding the abstraction of software control does not make the idea new or worth protecting.
What people don't realize is that you could never patent the end result of an invention, only the particular way in which you solved the problem. With software, they are patenting end results, saying adding accelerometers with a touch screen that has a cellular radio is revolutionary, or that providing a video stream with a certain open codec on a computer needs to be protected. Well, no it doesn't. Protecting the certain way in which you use software, hardware, and branding to release your product is protected under copyright and trademark.
Intel should not be allowed to patent passing data through the light spectrum. Similarly, anyone who releases their codec as an open standard cannot patent playing back the codec, if someone figured out a way to do it with their own different software.
Ahh... But you don't know all the places that it requires LICENSING.
Use it to produce a home movie, you're okay.
Use it to produce a indie movie, even with "pro" grade equipment and you're not.
Use it to produce a demo reel for your work, and you're not.
Only parts of the generation or playback licensing have been paid for- you're on the hook for everything else and they'll enforce if you hit a certain threshold (about $100k of revenue of any kind generated from it...). They'll come mug you for money at that point and it's NOT cheap.
I am not merely a "consumer" or a "taxpayer". I am a Citizen of the State of Texas
If that approach were to be applied to the "analogue switchoff" in UK radio then it would have to be delayed until Philips relinquished, or at least freed, their bundle of patents that puts about £10 on every DAB radio.
Hmmm, that's a good idea.
No to patents, if it gets in the way or makes things tough? Really? Then the value of patents is zero?
This is not the right argument.
shortening the term would not require compensation any more then prohibition required the compensation of alcohol manufacturer's.
Morpheus, God of Dreams.
If such a bill became law tomorrow the h.264 and html 5 were made before teh law and therefore under the grandfather clause would not be valid.
http://saveie6.com/
I can't give a percentage of patent laws that have it, but it is not unheard of that a patent law contains an article that deals with appropriation of a patent. This is used in very restricted cases. For example, in case of a severe disease, a pharmaceutical company can't hold a country at ransom. The loophole exists that the patent is appropriated, and if properly done the company will be compensated (but not as much as the ransom). I believe that Brazil did this a couple of years ago (with respect to an AIDS drug). Economical reasons may also be case.
It is extraordinary rare that the article is used (don't know whether US patent law has it), but it just takes some action on the part of the government and a stack of money to boost the economy by giving anyone free access to a particular piece of technology, if that piece of technology is crucial and we can't afford to sit out the 20 year term before the patent lapses.
Bert
While the popular term for copyrights and patents ("intellectual property") really muddies the waters, they are not property rights. In fact, the Constitution specifies that they must be expropriated, not just that they may be. The Constitution states that copyright and patent terms must be for a "limited time", and that they are solely to "promote the progress of Science and the Useful Arts". They are not a property right intended for the individual, they are intended to serve a societal good and to be limited in duration. If the greatest benefit to science and art would be to remove all patents and copyrights, the Constitution's clear statement of their only legitimate purpose would not only allow but demand that we do so.
To fight the war on terror, stop being afraid.
I would rather front load the lawsuits. If a group of "industry leaders" with a "significant presence" in a field want a license-less standard, it shouldn't have hidden liability. A one year notification starts and anyone who states that the standard violates their patents can complain at the start. If someone makes a reasonable (as in a judge agrees) complaint of violation, the clock stops on the notification. The standard would have to be revised or the patent would have to be found to be invalid. Once the year long notification is over, you can't make a patent claim against the standard. Companies operating in a particular field with applicable patents will know what standards are coming out (I guarantee there would be at least a dozen websites related). And it's easier for them to nip a patent violating standard in the notification phase rather than sue a large number of unwary companies, unless patent trolling is in their business model.
There would be complications related to determining what constitutes "industry leaders" or a "significant presence", but there will be lawyers involved anyway. It's just better to bring them in at the start.
Nonsense. For one thing, you can shorten the term of new copyrights without affecting existing copyrights. For another thing, if congress can extend the term of existing copyrights as they did for Disney's latest copyright grab, I think it's only fair that they be allowed to shorten them as well.
"In prison you just have to shut your eyes and take it. Here you have to shut your eyes and give it."
Here is the thing.
Software is the only industry that that is encumbered by both copyright and patents.
Reasonable IP protection is a good thing.
I like that there are patents and copyright.
But they should not cover the same material in this way.
Copyright is the more appropriate protection for software (though its duration is far to long).
He was the lawyer, I was just a consultant. Guess who was taken notice of?
From scarped cliff or quarried stone she cries "A thousand types are gone, I care for nothing, no not one."
Instead of invalidating patents, why not just simply say all standards must not be patent encumbered?
That turns "we're taking your great idea" into "we'll take any great ideas that you don't try to own, lock, stock, and barrel". Everyone knows the real money is always in delivering the solution and maintaining it, not trying to control the idea and own it. Large companies hate this of course, because they know that if they had to compete in a fair marketplace the small shops would eat their lunch since they can out-innovate most of the time (especially with software).
AccountKiller
it should be more along the line of "if you offer a free version of something and it becomes industry standard, you lose your rights to it".
It gets rid of this bait-and-switch bullshit where they make a codec free/easy and it becomes standard then they decide to charge for it once it everyone NEEDS it.
I've said something along the same lines in posts on this subject over the past few weeks:
The government should seize the H.264 patents via eminent domain or other legal structure, compensate the parties involved with a one-time payment, and make the patents freely available for all.
Governmental use of a patented invention is viewed as an eminent domain taking of a license under the patent and not as a tort.
The reasoning is the same as for seizure of real property which stands in the way of a public purpose (road, fort, etc.).
The public purpose for freely shareable audio/video seems quite clear, especially if H.264 is going to be mandated (even indirectly) through various government decrees, regulations, etc., or even if the government adopts an existing industry standard.
I'm not a lawyer, but I play one on the Internet. Blog
Article the seventh [Amendment V]
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
---> It's the last half sentence here ... ; nor shall private property taken for public use, without just compensation http://www.half-bakery.com/
No, actually it doesnt.
Patents are not real property. They are monopoly privileges *created* by the state, and in fact they represent "expropriation" to begin with. Understanding this fact is critical.
The proposal in this article is backwards for exactly that reason. We have a problem created by state interference in the economy, and rather than propose that the state simply *quit creating the problem* we propose even more interference.
Entirely backwards. The solution here is the opposite of the proposal. Simply abolish patents instead.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Friends don't let friends enable ecmascript.
Thank you. The idea they are entitled for money for a creative product I make using their codec - effectively without other options in the market. Just try to buy a camera without it - is the opposite of freedom. Market freedom or personal freedom.
This market is NOT open, and there is a concerted effort to make it that way and keep it that way. Lots of patent-saber rattling and veiled threats. The folks who are behind this are the same people who will lie to you and tell you " you have options" and "the market is free". They have a powerful pulpit to spread their message.
Can we legislate? I dunno. I think that requires a certain amount of political will, and I don't know that we're there yet. I'd like to think it's in our interest to do so. Possibly be a benefit to the business as well. We're more competitive when we are forced to compete, rather than having a few players tightly control things. But, then you are one of the few controllers, your perspective changes.
"Give a woman two glasses of wine and some pad thai, and they'll agree to just about anything." the Sports Guy
Without patents at all, every inventor has equal rights to what he invents. He just doesn't have any protection from those that steal rights from those who don't invent. What a patent really does is, in the name of protecting an inventor's rights from those who steal, it actually steals the rights from subsequent inventors (just because they didn't get a patent first). There is no property right in a patent as that right is always held. Instead, there is the expectation that the government will block the thieves who would steal ... and also those who happened to have invented the same thing. That expectation is being treated as a property.
The original purpose of a patent is to benefit the nation by encouraging invention that would otherwise not happen. Invention that would have happened, anyway, would benefit the nation, anyway. Patenting inventions that would have happened, anyway, actually hurts the nation, because it steals from the alternative inventors, destroys competition (for the term of the patent), and even discourages invention efforts (because of so many inventors doing so many things now, there is little assurance you could be first to the patent office).
Any real property right is not in patents held, but rather, in the fact that others don't hold a patent that takes your property away. So when no one else has the patent, you get to keep the invention you made.
now we need to go OSS in diesel cars
It's completely absurd. I've used an analogy before. Did typewriter manufacturers demand a fee for stuff authors wrote on their machines? They had patents on typewriters. There's your legal precedent, and it gets to the heart of promoting the arts and sciences. These software patents throw a ridiculous roadblock towards that goal.
Independent and concerned folks should stage a mass protest, video each other at outdoor protest sites, swap one dollar with each other for instant copies of what they shoot, on those compact flash things or USB sticks or whatever you use, making the clips be "commercial" as well, then upload the videos all over right then, and challenge those absurd rules. It's called civil disobedience, and large numbers work to get obviously stupid laws changed. Not three guys, but an organized across the nation "day of stupid retarded video software patents challenge", thousands of people, something like that, something that would make the news all over and couldn't be ignored. They just did this a few weeks or so back with reefer laws, mass smoke ins.
I don't do video myself, but seems like if this is really a concern to so many people, interested folks could take this idea and run with it, do a facebook thing, all that social networking jazz a lot of you folks do, pick a day and just do it, organize away, start the chatter, add comments to youtube vids to get the word out, drop comments on blogs of interest, whatever it takes.
OK, I'll offer a date, June 5th upcoming, that's on a Saturday. That's almost a full month to get the word out, "Protect your Right to be Creative with the hardware you purchased day. End software patents. Copyright, yes, patents, NO".
That speaks much truth. Get rid of software patents and you have "legislated past the problem." Or more accurately, you have "delegislated past the problem."
That's the problem with using loaded terms like "intellectual property". Patents are not "property". According to the Constitution which you mentioned (Section 8 - Powers of Congress):
"The Congress shall have power ...
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"
An "exclusive right" is not a property. Car analogy: if I park my car at a vacant spot, I have the exclusive right to that spot as long as parking regulations allow, but I do not have property rights on that spot of the street.
The US government CAN use any patented technology for their own purposes without compensating the patent holder, but that won't work for H.264, unless you have the government run YouTube.
Correct.
Producing the movie does not require a license. Distributing the movie for pay would require a license.
Producing with H.264 does not require paying a license fee. Demo reels generally are not distributed for pay or in quantities large enough to meet the thresholds for which licensing fees kick in.
Engadget had a good article that dealt with much of the H.24 licensing FUD that is going around.
So to wipe out a competitor's patent, push their technology into a standard.
That wouldn't work. For instance, company A develops a new drug for boneitis. They patent it. They aren't even interested in licensing it. However, the other drug companies all start manufacturing it anyway, without licenses. Company A sues them.
They point out that since the whole industry is making this drug, it is an industry standard, and the patents cannot be enforced according to the proposed stupid law.
Or is the law only meant to apply to standards that are formally develped by an industry group, as opposed to de facto industry standards? If so, company A is still out of luck. The other companies get together and form the Boneitis Treatment Standardization Committee, and approve a variant of A's drug as the standard treatment. Now it's a de jure, not just de facto industry standard, and the stupid law applies.
Or does it only apply when the standardization involves the whole industry? In that case, it would not apply to H.264 because not everyone in the industry participated in the standardizaion.
The net effect of the proposed law is to get rid of patents, except in the case where only the patent holder is interested in using the invention (e.g., there is some other factor besides the patent that stops others from using the invention), or there are sufficient alternative ways to accomplish what the patent covers that no one needs to license it. In both of these cases, there is no point in getting th patent in the first place.
If we want to get rid of patents, the legislature has the power to do so. The Constitution allows a patent system. It does not mandate a patent system. The proposed law is simply brain dead.
They'll come mug you for money at that point and it's NOT cheap.
It's dirt cheap.
Retail sale, disks or downloads:
Where an end user pays directly for video services on a title-by-title basis ...royalties for video greater than 12 minutes (there is no royalty for a title 12 minutes or less) are...the lower of 2% of the price paid to the Licensee (on first arms length sale of the video) or $0.02 per title
Paid subscription services:
Where an end user pays directly for video services on a subscription-basis (not ordered or limited title-by-title), the applicable royalties per legal entity payable by the service or content provider are:
100,000 or fewer subscribers per year. No royalty.
100,000 to 250,000. $25,000
250,000-500,000. $50,000.
500,000 to 1 million $75,000.
Over $1 Million. $100,000.
Broadcast, Cable and Satellite:
where remuneration is from other sources, in the case of free television...satellite and/or cable Transmission, and which is not paid for by an End User), the licensee (the broadcaster) may pay...according to one of two royalty options:
(i) a one-time payment of $2,500 per AVC transmission encoder
or (ii) annual fee per Broadcast Market
starting at $2,500 per calendar year per Broadcast Markets of at least 100,000
but no more than 499,999 television households
$5,000 per calendar year per Broadcast
Market which includes at least 500,000 but no more than 999,999 television households
and $10,000 per calendar year per Broadcast Market which includes 1,000,000 or more television households.
Free distribution over the Internet:
In the case of Internet broadcast for which the End User does not pay remuneration for the right to receive or view, i.e., neither title-by-title nor subscription), there will be no royalty during the first term of the License (ending December 31, 2010), and after the first term the royalty shall be no more than the economic equivalent of royalties payable during the same time for free television.
The Cap
In the case of the sublicenses for video content or service providers, the maximum annual royalty ("cap") for an enterprise (commonly controlled legal entities) is... $5 million per year in 2010.
$5 million a year for as many free H.264 video downloads (over 12 minutes) as Google has the capacity to host.
License terms.
Five years. 10% increase cap on renewals.
SUMMARY OF AVC/H.264 LICENSE TERMS
NO!
Thought I was on Facebook and was looking for the "Like" button.
Death and taxes are both inevitable, however, death doesn't get worse year after year.
I'm not sure that industry can solve this mess that government created."
I don't know about Australia, but if it has to do with protecting or accumulating wealth - the modern intent of patents - in America, then any associated government mess that has been created in the last 30 years was at the behest of, paid for, and crafted by industry.
Hence, the average American's and the nation's interests are rarely represented. You only get "messes" when legislation is focused solely on the interests of a few.
Orwell: "In a Time of Universal Deceit, telling the Truth is a Revolutionary Act"
There are several factors to the H.264 problem. The problem of patents on standards is hard to legislate away unless the legislature sets the standards. That solution SHOULD be applied to things like the electrical code (where it's a mandate as well as a standard). There are just too many problems waiting if it's applied to mere industry standards.
Instead, that problem has to be solved by people behaving tastefully and not being idiots, so I suppose I'm saying it won't be solved.
The second issue is the MPEG-LA's use of FUD to scare others away from more open standards (or at least give them an excuse). THAT can be partially cured by declaring a limited time to sue over a supposed infringement. It's been 10 years for theora. If they haven't found a reason to sue yet, there isn't a valid one. The principle of estoppel applies well here, but the high cost of court could be avoided by writing it into law as a presumption rather than something you have to argue in court.
Narrowing the scope of patent suits by legally recognizing the right of a buyer to presume that relevant patents have been licensed and so absolving them of any further responsibility would help. For example, if my reasonably anticipated use of a cameras (that is, taking pictures with it for any purpose) violates a licensing agreement, it's the manufacturer and not me who can be sued over it.
The rest of the problem will require court reforms (sorely needed anyway) to make going to court affordable for mere mortals and reforming the patent office so that it stops rubber stamping everything. Perhaps if a patent is ruled invalid in court, the USPTO should be on the hook for the costs of that court case (since if it had done it's job nobody would have been in court over the patent).
Considering the forces that make H.264 the dominant codec for just about any video media created digitally, I'd call this more than a trivial issue. The level of control they desire gives them power over much of our new media. The sheer potential size of the issue is why it should become the concern of the government. ..and yes, governments generally do have the freedom to control what other people offer to sell to you. They're generally called consumer protection laws.
The Constitution allows a patent system. It does not mandate a patent system.
But, it does grant the right for an invention to be exclusively owned by the inventor for a period of time. You might not call that a patent, but it still has the same effect. I can guarantee that any law that takes that right away, like the proposed one, will not pass Constitutional muster.
Bill
It's my Sig and you can't have it. Mine! All Mine!
ANSI used to have a policy that they would not accept standards which contained patented components. That changed in the 1980s, I think. (The link to ANSI's patent policy is currently returning the message "Cannot connect to the configuration database. For tips on troubleshooting this error, search for article 823287 in the Microsoft Knowledge Base at http://support.microsoft.com./")
The legal way to address this is to require that standards bodies, from IEEE to ANSI to MPEG-LA, lose their exemption to antitrust law if they promulgate standards which contain patented components. Without that exemption, when companies get together to agree on a standard, it's conspiracy in restraint of trade.
In general, most of the more annoying patent problems are really antitrust problems. Anyone can get a very narrow patent on a very specific way of doing something. Such a patent is not useful unless the very specific way is a de-facto standard enforced by market dominance. That's an antitrust issue.
The reason MPEG-LA gets away with this is that the Justice Department signed off on it in 1997. That's consistent with the FTC-DOJ 1995 guidelines in this area. Anyone can buy an MPEG-LA license under stated terms. So they meet the guidelines. The guidelines don't address the issue of the interaction of de-facto standards and market power. They should. That's what needs to be revised.
For background, here's a speech by an FTC commissioner of the Clinton era on this issue. He makes the point that antitrust lawyers and patent lawyers don't talk to each other much and don't understand each other's fields. Also see this Justice Department Antitrust Division talk from 2007. If you want to talk intelligently about this issue, you need to read these materials.
$5 million a year for as many free H.264 video downloads (over 12 minutes) as Google has the capacity to host.
Strike this.
The $5 million cap applies to mega-corporations like Disney distributing content through many commonly owned channels and services.
One thing I'd like to see (besides the abolition of software patents altogether) is being able to demand of a patent holder that they tell you whether your product infringes on their patents.
That way, for instance the Linux foundation could demand of Microsoft, or the Xiph.org foundation could demand of the MPEG licencing consortium, that they give a list of patents they infringe on, and they'd get a reasonable time (say, a year) to respond.
That would go some way towards both alleviating the submarine patent problem, and stopping FUD tactics with vague threats about possibly suing in the future if a competitor gains traction.
We could solve the H.264 debate if a country's legislature were to mandate that any patents that contribute to an industry-recognized standard were unenforceable in the application of that standard. Ideally, each standard would also be required to have a 'reference design' that could be used without further licensing.
MPEG-LA Attorney: Sir, do you mean to say that we could end this debate about H.264 if we could simply get the government to nullify patents for any privately developed technology when it becomes recognized by the industry as the standard and require the developer to make the design of this technology freely available to the industry, thus ensuring the industry is able to manufacture and use said technology without indemnification to the developer?
Disclaimer: Any Resemblance to Actual Events and/or Actual Persons, Living and/or Dead, is Purely Coincidental and has No Basis in Fact.
I'm just saying...
Power does not corrupt - power attracts the corrupt.
As I understand the license, distributing the movie for free, but having the video hosting provider (such as Youtube) inject ads into your movie, requires that both you and the provider have a license.
Government is not the answer to every problem. That's like trying to drive a screw with a $500 hammer.
True. Politically difficult, but true.
The Supreme Court will not -- and those are the nine individuals whos thoughts count. That would be a classic taking of a vested property interest. If you live in the Western U.S., then it is Congress that granted the original title to the land that you're residing on. If Congress can grant that title, then it's only fair that they be allowed shorten the term of that title by law, correct? Despite the rhetoric on Slashdot, intellectual property is "property" in the eyes of the law. "Nor shall private property be taken for public use, without just compensation" will apply in exactly the same way.
That's what this fight is about, and why Vorbis is being developed. And submarine patents do exist; there's much FUD by MPEG-LA members being spread about the possibility of Vorbis infringing yet unknown patents.
What we really need is compulsory licensing at some percentage of the per head sale price. That way we still get the commercial value of patents without discriminating against non-commercial uses.
That argument worked really well with slavery.
(not that I am against patent trolls creating their own country where they can sue each other and leaving everyone else alone, mind you)
Contrary to the popular belief, there indeed is no God.
And stating that it's relevant to video sharing sites- they're an enabler, but YOU are the one on the hook, not they (because there's yet another license THEY have to have to do what they're doing...) and you're still needing that license in addition to the one they're paying.
Shorts under 12 minutes long are royalty free.
Period.
Amateur or professional production.
Free or paid distribution. It doesn't matter.
Royalties on SALES of disks or downloads are 2% of the retail price or 2 cents a title, whichever is LOWER.
MPEG LA doesn't give a damn about your wedding videos.
Subscription services with less than 100,000 paid subscribers are also royalty free. Your "viewer supported" Free Culture magazine on DVD+R is a go.
Own a cable service or TV station in a market of less than 100,000 households?
The one time fee for an AVC transmission encoder is $2,500.
SUMMARY OF AVC/H.264 LICENSE TERMS
That could get interesting...making Microsoft provide a public-domain reference design for an OOXML reader/writer. :)
(T>t && O(n)--) == sqrt(666)
There are thousands of engineers, companies, universities, professionals work in the MPEG standards. It is not like some genius American engineer woke up one day and coded it and some evil lawyer named Mr. Mpeg La patented it.
Did you hear the price Google paid to acquire and open source VP8? You would be sure surprised at the price they paid to patent lawyers just to make sure it won't burn them. Consider this, Nokia, always called "owner of Symbian", having a huge stake, had to work with an army of lawyers just to make it open source. It took 1 year.
What kind of congress has the power to abolish an international patent and how do you plan to pay patent owners, the people who designed the codec/standard itself?
We could solve the H.264 debate if a country's legislature were to mandate that any patents that contribute to an industry-recognized standard were unenforceable in the application of that standard.
Now look at the GPL: If you publish source code using the GPL license, then you grant the receiver certain rights, like the right to modify and re-use the source code for any purpose, as long as it is published again under the GPL. If source code published under the GPL is covered by a patent, then you have to grant the receiver the right to use that patent as far as it covers any derived code.
So if you created that proposed law, and I had therefore the right to create and use an h.264 encoder and decoder despite it being covered by patents, I still couldn't publish it under the GPL. The GPL requires permission use of the patents for purposes outside the application of that standard.
This is what makes it impossible to create GPL software covered by RAND licenses (where each of many patent holders says: Anyone can use my patents as needed for this standard, as long as they don't sue me for using _their_ patents as needed by the standard. ) This is a whole that the GPL dug for itself, and which the likes of Microsoft just love to exploit; it makes it possible to offer license terms that are nice and fair and not acceptable for GPL software, which perfectly fits their goals.
First, those standards are pure algorithmic patents, and thus are probably invalid to begin with. It's just a question of somebody making the right arguments in a patent nullification suit.
Second, even if we assume the patents are valid, companies would not be "forced to give up their IP if they join a consortium." Companies would be free to declare IP that they care about to the consortium but not license it to them, at which point it could not be part of the standard, but they would retain full rights to it.
Look, I have exactly zero sympathy for any company that pushes their patented technology on the world as part of an open standard. Interchange standards should be just that---standards that can be used anywhere. Patents and cross-platform compatibility/ubiquity are fundamentally incompatible. We either do away with patents for file formats or those patents do away with compatibility. It's really that simple.
That said, adding patent laws to cover consortiums is still the wrong way to handle this. Consumers should have a fundamental right to any data of their creation, period, whether they are encoded using software from a consortium or from an individual corporation. What we need is a fair use law that applies to file format patents, e.g. something like this:
Boom. No more problems with interchange formats and patents, all with minimal collateral damage. It's basically the patent equivalent of the DMCA's compatibility exemption. For example, this protects things for which alternatives exist (e.g. novel ways to implement MPEG in hardware), but does so in a way that protects consumers' right to their own data and their right to use hardware that they paid for.
Check out my sci-fi/humor trilogy at PatriotsBooks.
Who is smart enough to figure out what is patentable and what is not? Are they really working for the patent office? Or are they gaming the system as required by their business model?
The diversity and expression of human opinion is essential to human survival.
That's not exactly what I'm saying. Instead, what I'm saying is that Congress and the Supreme Court seem to have no problem with extending copyright terms despite the fact that the US Constitution says copyrights are "for limited times". If Congress can extend copyright terms retroactively, I say it's only fair that they be able to restrict them retroactively as well. Not necessarily legal, but "only fair" (meaning it's equally unfair).
Reducing the length of existing copyrights is just as much like stealing from the copyright holder as extending the term of existing copyrights is like stealing from the public domain. Copyright is a government-granted monopoly. If the government thinks changes to copyright terms should be applied retroactively, they should better do so in both directions than just in the direction that benefits the rich at the expense of the general public.
"In prison you just have to shut your eyes and take it. Here you have to shut your eyes and give it."
Why is the debate for the video tag codec only between h264 and ogm? The video tag is such an important part of html5 it really needs to get decided. Both seem to have too many things against them for general use. Why not just start from scratch and create a new video codec for the web. Meeting all the requirments both legal and technical and finally end this.
Patents are rationalized on the basis that protecting inventions from competition for "limited times" protects inventors from competitors who start competing with all their money intact, after inventors have spent their money inventing: disadvantage to inventors, who would be inhibited from inventing, interfering with the "progress in science and the useful arts" patents are instructed to promote.
Patents should file their auditable expenses with their application. Once an invention has taken in 10x its costs in revenues, it should no longer be protected. And indeed "10x" is just a threshold that no one should be able to argue with. It should be reviewed on an ongoing basis, and have tiers depending on the cost ($1K expenses might require 10x return, but $1M should require less, and $1B should probably require less than 2x return on investment).
Patents have no basis in guaranteed profits. Their only basis, all too often irrelevant in intellectual property commerce, rests in protecting breakeven. That is all that is necessary for inventors to risk spending their time and money on their idea.
Once a patented invention is specified in an industry standard, it is a very short time before its risked development cost is repaid several times over. So even in this case, only the fundamental reform to fairness is needed to fix what's gone so terribly wrong with patent overreach.
--
make install -not war
Congress could.
If Congress takes the essential H.264 patents from companies in MPEG-LA, these companies will likely plead the Fifth and sue for their "just compensation".
The best way to solve this problem is to end the system of government granted monopolies that is the patent system.
Or at the very least for the US to join the rest of the civilized world and abolish software patents.
"When in doubt, use brute force." Ken Thompson
There is no question that patent and copyright reform are desperately needed, and are the best solution. But since it seems like this won't happen anytime soon, the simplest solution would be for the MPEG-LA to change the licensing to something that prohibits themselves from changing their minds and extracting royalties at a later date. (Somewhat similarly to how the GPL ensures that a company can never backtrack on the open-sourceness of code.)
Or, even better, make a legally binding promise to give up all royalties, commercial included, at a fixed date in the future. Something like the following would make the masses happy methinks:
(however IANAL so I can't speak for accuracy, enforceability or realisticness of the language)
"Until (--insert date here--), MPEG-LA garantees the royalty-free use of (--insert MPEG specs here--) for non-commercial purposes. Directly following this date, said specifications are to be available royalty free for both commercial and non-commercial purposes, indefinitely. Starting on said date, no royalties shall be applicable or enforceable by any party on the specifications in their current form as of this writing ((--current date--)). This statement is binding under law and cannot be retracted."
As for the date, 2012 sounds good to me. :)
the Constitution only allows patents where they promote the progress of useful arts
The Supreme Court has ruled in Eldred v. Ashcroft and elsewhere that it will defer to Congress on what counts as "promot[ing] the Progress".
What people don't realize is that you could never patent the end result of an invention, only the particular way in which you solved the problem.
You aren't patenting the 'idea of cutting grass' you are patenting the design and/or methods to make a machine that makes it faster than using scissors.
The words. They mean things.
1) No more patents
2) No more trademarks
3) No more copyright
4) No more intellectual property rights
5) invalidate all existing of the above
In the 21st century none of these make sense any more time for them to go!
Whine, cry, and moan all you want... until the above happens this mess is only going to get worse...
Any of you think that the mpeg gestapo (thats what they are) is going to do anything but come for $$$ later is foolish.
I can't stand mozilla and its programs..but in this instance I agree. NO h.264! NO WAY NO HOW!
as much as crapple is just that crap... the no flash stance is a good move, OTHERS SHOULD FOLLOW! flash is bad, and it needs to go too!
So flame on.....
1311393600 - Back to Black
"I'm sorry sir, your idea has become too successful, we're going to have to take it away from you now."
You've got a mistranslation, here. It's more like:
"I'm sorry sir, you contributed your patented idea to standard X, you're not allowed to use your patent against anyone implementing X."
or even:
"I'm sorry sir, you contributed your patented idea to standard X, you're not allowed to use your patent against anyone using the reference implementation of X."
So, in short, nobody would have the force of their patent involuntarily stripped, it'd be a voluntary part of participating in some standardization activities.
At a minimum, I suspect it'd be helpful if someone came up with some good, marketable shorthand for a standard that is "open" in these ways.
Tweet, tweet.
So you want to establish a system where if an idea turns out to be really good, so much so that it becomes widely used and an standard, that all of a sudden the inventors lose any ability to make money off the idea and they lose their company and their investments?
Not exactly what I would pick as a means to encourage people to work or invest in this area.
Since the Constitutional article also not only allows but requires that these rights be for "limited times", it is not creating a property right. It is allowing certain laws, only insofar as they advance a societal good ("to promote the progress of science and the useful arts"). Since the Constitution requires expropriation and is framing the issue as a societal, not individual, right, there is no property right here. If science and the arts would be best served by eliminating or shortening copyright and patent terms or narrowing their scope, the Constitution does not just allow this to be done-it requires it.
Look at the very different way in which the Constitution treats property rights, and you will quickly realize that copyrights and patents were never intended to be viewed as property.
To fight the war on terror, stop being afraid.
Could you patent lawnmowers?
The clothespin. The lead pencil.
The spring loaded snap mousetrap. The hand-pushed reel lawn mower.
All have been patented again and again because inventors made significant improvements on the original idea.
What you want in a mower is a less physically demanding machine, safety for the operator and bystanders, an even cut, and a product that is economical to build, ship and service.
There is no one path to a solution.
The power mower - the riding mower - introduces its own complications and hazards. From where I sit, automation make sense. Faster response time in an emergency. Greater fuel efficiency, and so on.
That these improvements are implemented in software rather than hardware doesn't strike me as a meaningful distinction.
Hear, hear! Patents are a problem created by government legislation, and the best solution is going to be to repeal that legislation. Stop giving corporations monopolies on the use of mathematical algorithms.
He who lights his taper at mine, receives light without darkening me.
By the time they care about your indie movie, you've made enough money that their fee is irrelevant.
Just because you can afford to pay doesn't mean it's correct.
What if laser printers started coming with the same kind of "license", and after you use a MoneyGrab® printer to print the script for Avatar, the printer company comes after you for a few million dollars in royalties? That would be easily solved by using a different printer, but the problem with H.264 is that it is almost completely impossible not to use a device/software somewhere in the production chain that allows the license to kick in.
If this sort of license term was part of the EULA for Windows (i.e., if you produce anything where the Windows OS is involved in the production chain, you owe royalties), it would be shot down in courts in about 30 seconds, since the end user really doesn't have a choice. The MPEG-LA is just as much a monopoly as Microsoft, yet governments aren't up in arms about it.
So... say you have some problem. You decide that the answer is getting the government to legislate a solution. Now you have two problems.
Your entire post is a non-sequitor in the context of H.264. H.264 patents are most certainly based on the specific way in which the data is transformed, and have nothing to do with the "end result".
Ranting about "software" patents is also irrational. If you eliminate software patents, you only move the problem a step further down the line. While you could then distribute a software H.264 codec, as soon as that software is attached to a piece of hardware, it's falls under the realm of traditional patented technology, and would still have to pay royalties.
So, eliminating software patents would make the loophole a bit larger, but that's all.
Slashdot gets worse every day... Pipedot: News for nerds, without the corporate slant
Actually it sounds to me like that is exactly what this proposal is proposing, albiet to only a limited extent. It's saying "government created this problem" by allowing these kinds of patents - where "allowing these kinds of patents" translates into actual physical action on the part of the government as "deciding in favor of the patent-holders in lawsuits and using the force of law (e.g. men with guns, when it comes down to it) to uphold those decisions". Then it's saying that it's doubtful that the industry itself can solve this problem that government created, and suggesting that the solution be to pronounce patents in such standards invalid, which translates into actual physical action on the part of the government as "no longer deciding in favor of the patent-holders in lawsuits", with the subsequent implication of no longer having the threat of men with guns coming down on you if you use the techniques thus patented in an implication of such standards.
Basically, he's saying that, within the limited domain of "industry standards" (however that's defined), patents should be effectively abolished, by not being enforced.
-Forrest Cameranesi, Geek of all Trades
"I am Sam. Sam I am. I do not like trolls, flames, or spam."
A patent is your property.
The legality of the product your company manufactures, is NOT your property.
Eminent domain applies to one, and not the other.
Slashdot gets worse every day... Pipedot: News for nerds, without the corporate slant
I think that this raises a question regarding non-consenting inventors. If an inventor who holds a patent is not a consenting party to the formation of the industry standard, should they lose their patent rights solely because someone decided to make a standard based around the patent? E.g. if a group of cotton makers created a "standard seed removal system for cotton" as an industry standard, should that have caused Eli Whitney to lose his patent on the cotton gin for it becoming a de facto standard when he never made it a de jure standard?
Governments could mandate that everyone had to use H.264. Wouldn't that end the debate by Legislation?
Sorry but all property is created by the state (by rule of law actualy). Without rule of law there is no property only possessions.
There is precedent: Daguerrotype and the French governement. From wikipedia (http://en.wikipedia.org/wiki/Daguerreotype)
Instead of Daguerre obtaining a French patent, the French government provided a pension for him.[6] In Britain, Miles Berry, acting on Daguerre's behalf, obtained a patent for the daguerreotype process on August 14, 1839. Almost simultaneously, on August 19, 1839, the French government announced the invention as a gift “Free to the World.”
There really is a population of people who won't ever acknowledge that OSS isn't always the best tool for the job, and a big slice of that population seems to hang out on slashdot.
If you mod me down, I will become more powerful than you can imagine....
Yay, I want to see GovTube..
- Raynet --> .
It's software and not patentable. It's maths and not patentable.
In what case has a U.S. appellate court held that novel methods of information processing are categorically not patentable subject matter?
Interestingly, real property rights are also privileges created by the state, or, in the absence of a state, by force.
Don't take life so seriously. No one makes it out alive.
So, if your project makes $100,001 a year, you have to pay MPEG-LA 25% of its income for their one single technical contribution
That is 100,000 subscribers to your paid subscription service. The Strip Club Channel at $20/mo. AVC license $25,000/yr. Your monthly gross $2 million.
Acceptance to H.264 as a standard, even a defacto one, IS acceptance of the patented for profit technology into what is currently a patent free community shared environment. This will change the face of the internet as we know it
Isn't the issue of the respective companies keeping their IP handled by the fact that we're talking about official standards and not DeFacto ones? No one would have their IP ripped from their hands, they just couldn't reap the benefits of calling themselves an ISO standard in exchange for nothing. It seems to me that the whole point of having a standard is negated when it's at the mercy of an entity whose best interests are the monetization of it above other concerns.
Better idea - make an exception for copyleft FLOSS licensed software. Copyleft, to make sure everybody pays their fair share - in code. If FLOSS, then it is automatically for the good of all society, so it is something reasonable that a government can mandate.
I know tobacco is bad for you, so I smoke weed with crack.