'Free' H.264 a Precursor To WebM Patent War?

webmink writes "The MPEG LA seem unwilling to explain why they have extended their 'free' H.264 streaming video policy now. This article unpacks the history of MPEG LA and then suggests the obvious — it's all because of WebM — and the worrying — maybe it's preparing the ground for opening a third front in the patent war against Google."

Comments

Patented Standards

[GuerillaRadio]

It seems an obvious requirement now to me that any 'international standards', as H.264 is described in TFA, should not be written by a consortium that have a collection of patents on the only possible implementation of the standard!

I'm not sure how this would be ensured - maybe the same consortium that pool the defensive patent pool for Linux could start a standards body based around this simple idea.

Re:Patented Standards

[ducomputergeek]

ARM and W-CDMA work in similar ways. ARM happens to own the patents and licenses them to whomever for a reasonable fee. W-CDMA works in much the same way as H.264. You have a bunch of companies that decide to share patents into one resource. It makes it easy for other companies to pay 1 fee and then use the technology. And H.264's licensing terms are reasonable. There is a cost of doing business. I know that is not popular around here, but it's the truth.

Unfortunately it's going to be harder for Free software going forward. Try writing an opensource point-of-sale or e-commerce program that can directly process credit cards. You can't without spending around $20,000 for PA-DSS auditing. And I see more of these types of industry barriers to entry popping up.

Re:Patented Standards

[GuerillaRadio]

Unfortunately it's going to be harder for Free software going forward. Try writing an opensource point-of-sale or e-commerce program that can directly process credit cards. You can't without spending around $20,000 for PA-DSS auditing. And I see more of these types of industry barriers to entry popping up.

It won't be harder, it will be impossible - it destroys the mechanism of Free / Open Source software. The way you put it is as if the rise of FOSS is just some kind of unfortunate minority part of the computing world that will be affected, rather than one of the most important, game changing event in the recent history of computing.

Re:Patented Standards

[Anonymous Coward]

ARM and W-CDMA work in similar ways. ARM happens to own the patents and licenses them to whomever for a reasonable fee. W-CDMA works in much the same way as H.264. You have a bunch of companies that decide to share patents into one resource. It makes it easy for other companies to pay 1 fee and then use the technology.

Yes, that's how it works.

And H.264's licensing terms are reasonable

But here I disagree. The difference between H264 and the above is its application space: both ARM and CDMA have a license covering production of equipment, whereas H264 is offered as a user license. The situation would be comparable if an end-user were charged for every communication over W-CDMA, or every programmer was billed for generating ARM machine-code (using a licensed compiler etc).

As it stands, end users are still liable for royalties concerning the codec in addition to the patent fees they may have already paid for by purchasing a digital camera / BR player. That's why the MPEG licensing terms are considered non-free.

Re:Patented Standards

[mcgrew]

I found a link from TFA to be quite interesting:

Where does WebM fit in?
WebM combines the Ogg Vorbis audio codec with the VP8 video codec Google obtained through its February 2010 acquisition of On2 Technologies for $133.9 million. On2 has a long history in codecs: Its earlier VP3 technology formed the foundation of Ogg Theora, and its VP6 was widely used in video streaming on the Web by virtue of its inclusion in Adobe Systems' Flash Player. VP8 had only been under development until this week, but now Google has issued the specification for the technology, source code and a software developer kit to let programmers use it, and a collection of partners who endorsed it in varying degrees. In contrast to how On2 handled its codecs and to how an industry group called MPEG LA licenses patents for using H.264, Google released WebM as a royalty-free technology. That means among other things that nobody will have to pay for using it and that open-source software projects can incorporate it directly.

Hooray! Free codecs for everyone! Who could possibly be unhappy about this?
The 26 companies and organizations that have contributed to the pool of H.264 patents. Among them: Microsoft, LG Electronics, Panasonic, Philips Electronics, Samsung, Sharp, Sony, and Toshiba. Apple holds a single patent in the pool, too. It's not cheap to research video technology, and it's not cheap to license it, either. For example, even though Microsoft holds 73 patents in the H.264 pool, the company pays twice as much for its rights to ship H.264 support in Windows 7 as it receives back from MPEG LA for its share of the rights.

What's MPEG LA doing about it?
At a minimum, it's raising doubts about whether VP8 infringes video patents, and maybe more. Group spokesman Tom O'Reilly won't comment about whether VP8 infringes any H.264 patents, but he did say Thursday that MPEG LA is considering a new patent pool that would license any patents used in VP8 technology: "Although we assume virtually all codecs are based on patented technology, the AVC/H.264 License we offer is limited to providing coverage for the use of AVC/H.264." Added MPEG LA Chief Executive Larry Horn, "Google has the right to disclaim royalties for its own technologies, if any, but it doesn't have the right to disclaim them without appropriate permissions for technologies owned by others, or otherwise contribute to the infringement of those technologies

Why use H.264 when Google is giving us WebM for free?

Yeah...

[webheaded]

I'm still rooting for Google's format. I don't care about free as in money so much as free as in open source. I don't see how it could possibly be sustainable for every single company that makes a browser from here on out to have to pay a fee to use this codec. If they put H.264 into the HTML 5 spec, that is only going to make it a pain in the ass for browser developers and open source users. It's stupid. This isn't helpful...it's just slight of hand. "Look it's free!" Um no...it actually isn't free at all. I wish people writing all the other articles would acknowledge that a little better. This changes nothing.

Re:Yeah...

[PybusJ]

Not really.

Unless you have an encoder license covering x264 then MPEG-LA still claim you are violating their patents if you use x264 to encode. MPEG-LA don't give out encoder licenses to end users (not even if you offer to pay them), but only to encoder suppliers. Even though I have a licensed H.264 decoder supplied with my OS, it is only licensed to play content created with a licensed encoder. I don't have, and can't obtain, a license to play x264 encoded video. So the MPEG-LA still claim I am violating their patents if I play something you encoded. Both of us _could_ get sued.

People who want "free as in open source", are not usually interested in free as in I can download some code but don't have patent licenses for it. This announcement has done nothing, nothing at all, to obviate the need to encoder and decoder licenses, this was only about streaming licenses -- yet another license you needed on top of encoder licenses and decoder licenses.

So x264 is maybe useful for "encoder manufacturers"; they can use its code in their products, if they can find a way to do so under the terms of the GPL[0]. Google use x264 based tools to encode youtube videos, and they have registered themselves as an encoder supplier to get the patent license (even though they only supply themselves). Since they don't distribute the encoder they create, they don't have to comply with the patent clauses in the GPL. Google are about the only people to legally benefit from x264, the rest of us don't have the size/funds for that option.

You can take the view that you don't care about infringing patents and ignore the MPEG-LA (fine, but in which case this announcement doesn't matter to you), or you do care (in which case this announcement still doesn't allow you to use open source H.264 codecs). There is *nothing* in this announcement for Open Source video users.

[0] The GPL, which x264 claims it is licensed under says: "if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program."

Re:It's not "Free" to begin with.

[blackest_k]

The third link has a good explanation of why h264 isn't really free.
First thing to be noted is that any deal they offer today can be withdrawn in five years anyway.
The free bit is only that they will not bill the end user.
the encoding is not free
the streaming is not free
and the decoding is absolutely not free.
The last one means any browser wishing to offer this functionality has to pay for it and unfortunatly it can't pass on the patent protection granted by paying for this so there is no way for firefox to offer this.

So really we should say no to h264 and hope google doesn't get creamed in its patent battles.
     

Not Google but Mozilla

[Per Cederberg]

The natural party to sue would be Mozilla or Opera here, not Google I think. Google already pay the appropriate license fees for YouTube, so there seems to be very little of a legal case there.

Re:Not Google but Mozilla

[feranick]

The lawsuit against Google would concern the alleged violation of MPEG-LA's patents in Google's WebM, not in the unlicensed use of h264...

(Patent) war! What is it good for!

[syousef]

(Patent) war! What is it good for!? Absolutely nothing.
H.264. What is it good for!? Absolutely nothing.

Sing it with me everybody!

Shakespear had it right you know

[Anonymous Coward]

First, kill all the lawyers. Yeah, sure, we'll have some confusion, initially, but... Come on, really. You know it's definitely, at least, worth a try.

Eminent Domain exists for this

[snookums]

Cases like this are ones where the US government (assuming these are US patents) should step up and use their powers of eminent domain to acquire these patents, declare H.264 a government standard (like AES and DES before it) and release the patents (or a perpetual license thereto) into the public domain.

The developers of H.264 and other codecs have certainly put in a lot of research and hard thinking. I believe their algorithms should be patentable (as opposed to "software" patents that are really on UI patterns and business methods), and I believe the inventors should be justly compensated. However, for maximal furtherance of the creative arts, information interchange formats need to be standardized and unencumbered. The visual entertainment industry contributes far, far more to the US economy than the codec-designing industry, and always will. An indirect subsidy like this would be an excellent stimulus.

If they had any sense, the MPAA would by lobbying the government to make this happen, rather than trying to shore up their old distribution models with copyright crackdowns. Getting free (gratis), standard, H.264 decoders into the hands of billions of people worldwide would give them a huge boost to their audience. Unfortunately, since they represent motion picture distributors, they're probably in favour of steep licensing fees to keep the barrier to entry high for content producers wishing to distribute independently.

Re:Eminent Domain exists for this

[martin-boundary]

I believe their algorithms should be patentable

Algorithms are just mathematics. I for one believe mathematics should not be patentable, even though it's one of the hardest subjects on earth.

Re:Eminent Domain exists for this

[dargaud]

People that smart should be able to play the stock market if they wanted to, for instance

Stock market shouldn't be a game. It should be what it was originally designed to be: a way for company to raise money for their own development. Not a game, not a pile of cards of companies purchasing each others, not a lottery, etc...

Re:It's not "Free" to begin with.

[amolapacificapaloma]

When he says "free", he means "free of patents threats". Of course you can do it "for free", but they will eventually come after you.

Ah, and when you "pass it to the OS", you need to have paid for and OS from a vendor that has paid the licensing...

Re:That makes no sense

[martin-boundary]

In todays heavily legal world, the ONLY kinds of standards you can rely on are ones where members of the standards group hold patents and pledges the protected use of same to people following that standard.

Erm, no. You can't rely on companies and individuals implementing a standard. They'll implement anything they like regardless, and then you'll have interoperability issues, pretty much as we have now anyway.

If you want a standard to be reliably implemented in a wide range of systems, you have to take out the "implementation" part of the equation. That means, distribute a public domain or BSD library which does all the hard work, and let everyone piggyback on that for nothing.

Re:It's not "Free" to begin with.

[Anonymous Coward]

First thing to be noted is that any deal they offer today can be withdrawn in five years anyway.

Yes, I can remember that only last year people saying that everybody using H.264 would pay when the MPEG LA jacks up their fees in 2011. That didn't happen of course, which isn't a surprise since the MPEG LA historically always offered the same or better terms when a new licensing period began. Turns out they have something to lose by alienating their customers, especially since they also want to sell future products to them which isn't that easy if people mistrust you.

the encoding is not free

Encoding is free, encoders aren't if you distribute more than 100.000 a year.

the streaming is not free

It isn't free if the streams are pay per view or part of a payed subscription provided that there are more than 100.000 sales or subscribers per year. If you have to pay it's either 2 cent or 2% of the price per sale (whichever is lower) and at worst 10 cent per year per subscriber.

and the decoding is absolutely not free.

Again, decoding is free, distributing more than a certain number of decoders isn't.

The last one means any browser wishing to offer this functionality has to pay for it and unfortunatly it can't pass on the patent protection granted by paying for this so there is no way for firefox to offer this.

Any browser can offer H.264 decoding for free by using the system provided codec framework. While Mozilla has been decrying that approach for their desktop browser it's exactly what they do in their mobile version (Fennec). Every modern operating system comes with a H.264 decoder anyway. For older Windows and MacOS systems there are free licensed downloads (Divx, Quicktime) and for Linux systems there is at least a cheap gstreamer plugin (ignoring the fact that almost anyone who uses Linux as a desktop operating system probably has some version of FFMpeg installed anyway).
Of course this is a problem, but it's a far cry from there being no way to offer such functionality.

Re:Wrong

[Anonymous Coward]

What part of "royalty free forever" did you not understand?

A lot more than you apparently. Its royalty free for only ONE SPECIFIC type of streaming. AND you still need a licensed (not free) encoder/decoders. AND they can change their mind. The court fees for any defense you feel entitled too are yours to bear.

so there is no way for Firefox to offer this.

They have more than enough money to pay for this..

The 5million a year does not get you the right for 3rd party distribution. Firefox would not be permitted to be part of any Linux distribution for example with them also paying the 5 million. You would not longer be allowed to give a copy of a distribution to a friend. 3rd party distribution like this will *never* be permitted by MPEG-LA. Not permitting unrestricted 3rd party distribution is a violation of the Mozilla/GPL etc type license. It is simply not legal in the US and other countries that support software patents.

Not even eminent domain.

[Sycraft-fu]

The government can take patents away for more or less any reason it likes, that congress has passed a law allowing it to. Reason is because patents are a power specifically granted to the government. Physical property ownership is considered more of a natural right. The government doesn't grant you ownership because they can't deny it either. Eminent Domain exists because they can take private property for public use, in certain circumstances, however there has to be compensation.

With patents that's not the case. The government doesn't have to grant patents at all. They have the power to do so, but it isn't required. What that means is the government owns all patents ultimately and can do as they want.

As such there are some peculiarities with patent law many don't know about. The NSA can fine secret patents. If a civilian files the same patent, the NSA patent is then revealed and granted at the time it is revealed. The government is allowed to make a law like that, since patents are one of their explicit powers.

Likewise they can take them for various reasons. Congress hasn't granted unlimited power in that regard, but there are a list of reasons for which they can say "That's ours now," and you get nothing. That was actually threatened in the NTP-RIM case and is probably part of the reason NTP took a settlement that didn't include future fees. NTP was requesting an injunction to shut down Blackberry service. The federal government wrote a brief to the court saying they believed that would have an impact on national security (the US government loves them some Blackberries, they are the biggest customer) and they'd prefer the court didn't grant it. They also noted that if it was, they might simply have to void the patent, which can be done on national security grounds. The judge then strongly suggested the two sides work their shit out now.

I'm not all that worried

[Sycraft-fu]

Google isn't stupid. They got to investigate the format and patents before they bought On2, and of course after once they owned everything. Also, this is precisely the kind of thing Google would be good at: Looking through large amounts of information and figuring out what is relevant. So My guess is that one of both of the following are true:

1) VP8 (WebM) does not infringe on any MPEG-LA patents, or at least not any real ones. They probably have some overly broad BS ones, but Google probably has examples of prior art. Google did an extensive review and found that there was no infringement, VP8 had been engineered to avoid MPEG-LA patents so that it could be sold without additional license.

2) On2, and therefor now Google, holds patents on critical technologies used in H.264. In the event of any infringement suit, they can pull those out and file countersuit. Having WebM stopped would not be a real big deal to Google. They aren't using it for anything important yet. Having H.264 stopped would be devastating for MPEG-LA. Google could thus force them to license all relevant patents, at not charge, in return for the licenses to the Google patents.

Those are my bets. One or both of those is the case and so Google is confident they can win a game of chicken. This also might explain the move by MPEG-LA to put a permanent licensing moratorium on free H.264 stuff, as well as the fact that there is no suit. They may have looked at things and said "Shit, we can't touch VP8. We could try but we'd almost certainly fail and just wind up with a bunch of legal bills, plug give Google an ironclad thing to point to showing WebM is ok." They may have decided it is better to make H.264 look more attractive and perhaps keep up some nebulous threats to make people think twice about implementing WebM.

Always remember that patent warfare is a dangerous game. The trolls can play it because they don't own anything or make anything losing patents means nothing. In MPEG-LA's case, there could be a lot to lose if things went wrong.

Re:I'm pragmatic

[RAMMS EIN]

``I don't care as much about the codecs being open source or closed source - I'm mainly interested in which format offers the higher quality at the same (or lower) bitrate.''

I, too, care about which format offers the higher quality at the same (or lower) bitrate. But I'm pragmatic enough to not want to have to jump through hoops if I want to install the software on my computer (on whatever OS I happen to be running), fix any bugs that I encounter while using it, or maybe even audit the software. And I don't want to get in trouble with the law over watching or encoding a video.

If MPEG-LA or any other organization wants to offer a video format that I cannot legally use, or for which a codec that allows me to do all the things I want cannot legally be implemented and distributed, that's fine with me. However, I then won't be using the format. Getting slightly better video quality isn't worth the hassle, annoyance, and security risks of typical "we care more about our anti-piracy measures than about our customers" software. If anyone else does want to use such software, fine by me.

The only point where this becomes a problem is when we are talking about standardizing on a format. Standardizing on a format that is not free to implement and use is a very bad idea. Not because it cannot be made to work, but because of pragmatic reasons: there will be barriers, and those barriers will hinder implementation and adoption. All the major players including MPEG-LA recognize this. That's why MPEG-LA is offering this "free for the most common uses" licensing: without that, H.264 would be a huge hassle. Similarly, Flash only became as widespread as it is because the player is freely available for the most popular platforms, TrueType won out over Type1 because of better licensing conditions, and free software is all over the software development world because you can use it without having to jump through hoops.

Ask yourself this: being pragmatic, how much are you willing to pay and how much work are you prepared to do to get to (legally) use H.265, the new and wonderful (and at this point, hypothetic) video format that is even better than H.264? At what point would you, for pragmatic reasons, decide to go with VP12, the (also hypothetic) video format that is almost as good, and free for all to use for any purpose, with free software codecs that you can install with a single click or command?

Re:It's not "Free" to begin with.

[TheRaven64]

the encoding is not free

Unless you use x.264.

In which case, you still need a patent license from the MPEG-LA if you live in a country where any of their patents are valid.

So all those open source projects like VLC, MPlayer, etc are paying through the nose to the MPEG-LA?

Nope, they all use FFMPEG, which is based in France. France does not recognise software patents, so they are not required to pay anything. Using them in the USA without a patent license, however, is illegal.

Who does their "free" licence benefit?

[ciaran_o_riordan]

The main problem caused by MPEG-LA is that people can't distribute video software. GNU/Linux distros have to worry about distributing software that supports H.264, and developers have to worry about adding support to their apps. Documenting this situation is my hobby horse but this "free" licence" is so limited, I can't find much to write about it. It won't make H.264 safe for standards like HTML5 either.

They promise not to sue non-commercial distributors of video (no ads allowed on the webpage). That means I'm safe to publish videos of me singing karaoke, but no one was going to sue me for that anyway. The only real case I can think of is public service television, which could put their shows online now without worry, but they'd have to be very careful about not having anything that could be called an ad on their webpage. Is that really the extent of this "free" licence that such a fuss is being made about?

• MPEG video formats
• VP8 and WebM
• Audio-video patents

Re:It's not "Free" to begin with.

[SanityInAnarchy]

Ah, and when you "pass it to the OS", you need to have paid for and OS from a vendor that has paid the licensing...

So you can support it only on OSes which have already done so. I've got Windows 7, which has done so. OS X has also done so. If you've got a recent nVidia card, chances are you've got a fully legal and paid-for hardware decoder which can be used just fine under Linux.

In fact, passing it to the OS, or to whatever local codec subsystem you've got, is a great way to ensure you can take advantage of hardware decoders. Insisting on implementing all this in the browser as a childish political move is a great way to ensure that Firefox will be the last to take advantage of hardware-accelerated WebM, if that ever surfaces.

Passing it to the OS pretty much ends the legal bullshit, and is the right choice technologically, also. It seems pretty clear that the only reason Firefox refuses to do so is because they don't want h.264 to win, even if it doesn't affect Firefox itself directly.