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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
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!
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.
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.
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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 ;-)
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.
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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
shortening the term would not require compensation any more then prohibition required the compensation of alcohol manufacturer's.
Morpheus, God of Dreams.
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."
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.
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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'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.
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.
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
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).
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.
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.
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.
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
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".
"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.