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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...
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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.
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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)
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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 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.
but you then can't redistribute said videos.
You buy an HD camera. it records in h.264 The moment you upload it tot he web you are supposed to buy another license for that video. The moment you share that video at your friends house on their TV. You need another license. what's that, you want to transfer that video onto a DVD, that's two more license violations.
I wish people would stop and read more about the licensing issues of H.264 They are currently generous, but MPEG-LA can literally revoke all licenses and make everyone pay fora separate license to create,view, edits, or distributes H.264 video.
i thought once I was found, but it was only a dream.
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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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.
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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
Actually, you're not licensed to do it even BEFORE the 150k people viewing it- that's just the threshold at which they have chosen to ENFORCE their IP rights. You technically still need a license for it (Check the licensing details on your gear, even the pro-grade stuff will tell you that you need a separate license for professional uses of the gear. They're not kidding.).
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.
As for Theora being better than h.264... No, you'd be right about that. It's on a rough par with MPEG4- VP8's closer to what you're looking for and if rumor's right Theora 2 will be in that space. Having said that, I'd prefer a web (and others...) standard to be something that's utterly unencumbered. All it'd take is for one player to play grab-em like Unisys did with LZW and you owe money all over the place. It could just as easily as not happen with h.264.
I am not merely a "consumer" or a "taxpayer". I am a Citizen of the State of Texas
You buy an HD camera. it records in h.264 The moment you upload it tot he web you are supposed to buy another license for that video. The moment you share that video at your friends house on their TV. You need another license. what's that, you want to transfer that video onto a DVD, that's two more license violations.
I wish people would stop and read more about the licensing issues of H.264 They are currently generous, but MPEG-LA can literally revoke all licenses and make everyone pay fora separate license to create,view, edits, or distributes H.264 video.
I've always been curious about this. The patent is obviously required for the creation of the encoding and decoding software. But how can distribution of an already encoded video be in violation of the patent? It doesn't implement the patent, only the results of using the patent. This really needs to be something that the legal basis of needs to be challenged.
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."
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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Exactly. It's like creating furniture with a SawStop table saw and the patent holders expecting to get a cut of everything you make with it.
You should buy the right to use the patented technology, and that should be the end of it.
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
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