By a conscious decision Vorbis *is* based off technology which is old enough to be expired if it ever was patented. That was part of the fundamental strategy in the Vorbis design.
Vorbis' floor system? Based off the earliest speech codecs. Vorbis' stereo system? based off the encoding used in records. Vorbis' psy model? taken directly from research papers from the 1960s. Vorbis' entropy coder? it's just a simple huffman coder!
The brilliance of Vorbis is that it's the result of finely optimizing the best of the oldest ideas.
However, the composition or implementation of the ideas might still run afoul of some idiotic patent. This is a risk that simply can't be avoided. It's a fundamental vulnerability that ALL software has thanks to our patent system. Even implementing an old algorithm in a new programming language can create a patent minefield.
So yes, what you propose will make a codec patent resistant.... but Vorbis is already there. And thats obviously not good enough for you, or the W3C. As such, your proposal is worthless. You seem to want certain immunity from patents, but that just isn't possible, even if you're willing to accept unreasonable concessions .
It's true that H.264 is better than Theora. But H.264 has zero chance of being made the baseline because it is expensive as hell and certainly not free as the W3C requires.
Theora is substantially better than any other codec which has a chance of being included. As such it's silly to say that Theora shouldn't be used because it isn't the best... thats a bit like saying "I won't drive any car but a Ferrari" when all you can afford is a used Ford Escort.
Obviously most implementations will also include a better codec than Theora, but Theora is a generally respectable codec at web streaming bitrates and it will provide a viable option for those who can't or won't pay the licensing fees for better codecs. In other words, Theora will be a reasonable baseline which is all it's supposted to be in this context.
Furthermore, the inclusion of Theora will also help keep the licensing costs down for better codecs. Everyone Wins, except companies that make money licensing codecs... and in the long run they'll probably win too, since web video that Just Works will increase the popularity of web video.
Theora is almost an order of magnitude better performing that H.261 and this is a critical difference for web video.
No one actually knows what the patent status of any software is!... In fact, several paid up licensees of mpeg codecs have been sued for patent infringement over these codecs *and lost*, so it's hard to argue that those codecs are better off.
It's true that Theora isn't very widely adopted, but it has been shipped by Linux distributions for years, so there has been plenty of opportunities for people to sue over patents. Theora is used by Wikipedia, one of the most viewed websites in the world. Of course, Vorbis is orders of magnitude better on this point.
What are you Nokia? An expensive and heavily patented codec like H.264 is not "open" in any meaningful sense. It's true that Ogg/Theora+Vorbis is not yet amazingly popular, but that is part of the point of standards. There is a chicken and egg, and first-mover takes all problem for file formats and standards help fix that problem.
Why does HTML have an image tag? What would the world be like if images on the web required various incompatible proprietary plugins? Why should video and audio be any different from still media?
There are important patents needed to implement a quality MP3 encoder which do not expire until ~2018. Though you're right that MP3 decode becomes free fairly soon. Video, on the other hand, is MUCH worse off and this argument is, after all, over the tag.
You could use prior generation codecs a bit sooner such as H.261 But H.261 needs something like 10x the bandwidth of Theora to produce something of even remotely comparable quality. Adopting that as a baseline would, no doubt, make parties like Apple and Nokia who earn money off codec licensing happy... it would not be good for the public. The bandwidth requirements of H.261 really make it unsuitable for web streaming, and the poor quality of the older codecs even at moderate bitrates makes them really undesirable.
While Theora is not quite as good as H.264, it's not several orders of magnitude worse. It's serious competition, and the price is hard to argue with. The Ogg solution is especially competitive right now as multiple MPEG licensees are getting sued and losing patent infringement cases brought both by third parties and members of the MPEG licensing pool. While you can't say for sure that someone won't sue you for using Ogg/Theora+Vorbis, it's becoming increasingly sure that you will be sued for using the MPEG codecs and that your expensive license provides little protection. At least Ogg/Theora+Vorbis are *intended* to avoid patents, and the money you save of licensing could go a long way for insurance or outright legal defense.
Ultimately the only way to resolve this issue is to fix the broken patent system in the US... but thats somewhat outside of the scope of the W3C.
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By a conscious decision Vorbis *is* based off technology which is old enough to be expired if it ever was patented. That was part of the fundamental strategy in the Vorbis design.
... but Vorbis is already there. And thats obviously not good enough for you, or the W3C. As such, your proposal is worthless. You seem to want certain immunity from patents, but that just isn't possible, even if you're willing to accept unreasonable concessions
Vorbis' floor system? Based off the earliest speech codecs. Vorbis' stereo system? based off the encoding used in records. Vorbis' psy model? taken directly from research papers from the 1960s. Vorbis' entropy coder? it's just a simple huffman coder!
The brilliance of Vorbis is that it's the result of finely optimizing the best of the oldest ideas.
However, the composition or implementation of the ideas might still run afoul of some idiotic patent. This is a risk that simply can't be avoided. It's a fundamental vulnerability that ALL software has thanks to our patent system. Even implementing an old algorithm in a new programming language can create a patent minefield.
So yes, what you propose will make a codec patent resistant.
.
It's true that H.264 is better than Theora. But H.264 has zero chance of being made the baseline because it is expensive as hell and certainly not free as the W3C requires.
Theora is substantially better than any other codec which has a chance of being included. As such it's silly to say that Theora shouldn't be used because it isn't the best... thats a bit like saying "I won't drive any car but a Ferrari" when all you can afford is a used Ford Escort.
Obviously most implementations will also include a better codec than Theora, but Theora is a generally respectable codec at web streaming bitrates and it will provide a viable option for those who can't or won't pay the licensing fees for better codecs. In other words, Theora will be a reasonable baseline which is all it's supposted to be in this context.
Furthermore, the inclusion of Theora will also help keep the licensing costs down for better codecs. Everyone Wins, except companies that make money licensing codecs... and in the long run they'll probably win too, since web video that Just Works will increase the popularity of web video.
There are important patents needed to implement a quality MP3 encoder which do not expire until ~2018. Though you're right that MP3 decode becomes free fairly soon. Video, on the other hand, is MUCH worse off and this argument is, after all, over the tag.
You could use prior generation codecs a bit sooner such as H.261 But H.261 needs something like 10x the bandwidth of Theora to produce something of even remotely comparable quality. Adopting that as a baseline would, no doubt, make parties like Apple and Nokia who earn money off codec licensing happy... it would not be good for the public. The bandwidth requirements of H.261 really make it unsuitable for web streaming, and the poor quality of the older codecs even at moderate bitrates makes them really undesirable.
While Theora is not quite as good as H.264, it's not several orders of magnitude worse. It's serious competition, and the price is hard to argue with. The Ogg solution is especially competitive right now as multiple MPEG licensees are getting sued and losing patent infringement cases brought both by third parties and members of the MPEG licensing pool. While you can't say for sure that someone won't sue you for using Ogg/Theora+Vorbis, it's becoming increasingly sure that you will be sued for using the MPEG codecs and that your expensive license provides little protection. At least Ogg/Theora+Vorbis are *intended* to avoid patents, and the money you save of licensing could go a long way for insurance or outright legal defense.
Ultimately the only way to resolve this issue is to fix the broken patent system in the US... but thats somewhat outside of the scope of the W3C.