Sorry poetmatt, but Groklaw didn't debunk the issue at all. As far as NEON is concerned, Groklaw hasn't reported on it yet as far as I can see. What it wrote in April about TurboHercules was somewhere between 'grossly misleading' and 'totally wrong', and the article contains several links to verify that, for an example, IBM brought patents into play (initially calling them "intellectual property") before TurboHercules ever inquired about possible problems in that regard (see here). Also, Groklaw claimed that IBM's threat letter to TurboHercules wasn't that bad because it wasn't an actual lawsuit or cease-and-desist letter, but IBM had promised in its open source patent pledge "not to assert" a list of 500 patents (see here). And there would be more examples.
I don't think a lot of people here on slashdot agree with you (poetmatt) and Groklaw's PJ that it's a good idea for any company to sue a free and open source software startup that was founded by the same person who created the Hercules open source project in 1999. In fact, a lot of loyal Groklaw readers were disappointed and some of the activists I know (as the founder of the NoSoftwarePatents campaign) were nothing short of shocked that PJ would rush to IBM's defense with an encouragement to sue the pants off an open source company. A few may have expected it from someone who's more loyal to IBM than Rush Limbaugh is to the Republican Party.
You say that it's not "IBM's fault" that Hercules users don't get the license they'd like to get, but that's the whole point of antitrust law: curbing abuse of rights (such as intellectual property rights) by companies in a dominant market position ("dominant" is actually an understatement given that IBM has a de facto monopoly on the mainframe by now).
Simon Phipps, former chief open source executive of Sun Microsystems, has just asked IBM's open source VP Bob Sutor via Twitter (with a reference to this very slashdot story) to clarify IBM's role in lobbying for software patents in New Zealand. It will be interesting to see Bob Sutor's response, should there ever be one.
My concern about ACTA is not related to copyright law but to its effect on patents. Copyright law is practically always infringed by intent, while patent infringement in the field of software is in most cases inadvertent (that's the most fundamental problem I have with software patents). It would be desirable to introduce into patent law, at least in connection with software, an independent invention defense. However, ACTA in the version I saw might do quite the opposite, treating a patent infringer as a "pirate" once he is made aware of an infringement (for an example, by a cease-and-desist letter). That's unreasonable and unjust in my view. I blogged about that.
Recently I read on Twitter that the US Trade Representative told knowledge rights activist Jamie Love that the US wouldn't mind throwing patents out of ACTA and instead the US government blames the EU for wanting patents included. Since those negotiations take place behind closed doors, it's not easy to verify that claim. However, it's more likely than not to be accurate. It would be good if EU-based activists could inquire about this (especially with help from Members of the European Parliament). With pressure from inside the EU there may be a chance to get patents thrown out of ACTA altogether. I know a lot of people here are at least equally interested in copyright issues but to many of us patents are the number one concern.
For those interested in EU processes relevant to free and open source software, here's a link to a blog post on a talk I gave on the subject (not discussing ACTA per se in detail, but with a couple of slides on EU patent policy in general) at LinuxTag in Berlin last week. LinuxTag is Germany's and probably Europe's largest open source event. The blog post I just linked to contains links to the presentation.
In 2005, venture capital investors who had backed (among others) eBay and Skype - and meanwhile also Twitter - supported my last-minute lobbying effort in the European Parliament against the EU software patent directive. The related press release mentioning Benchmark Capital (eBay, and more recently Twitter) and Danny Rimer of Index Ventures (Skype) is still online on the MySQL website although Oracle and Sun certainly do favor software patents. Guess they forgot to delete it. Other references to MySQL's position on software patents disappeared after Sun bought the company in 2008.
Those venture investors had previously supported an open letter to EU decision-makers warning against the possible consequences of an adoption of the proposed bill (which ultmately got thrown out, fortunately).
However, I also got turned down by many venture investors whom I asked to support such initiatives against software patents. I don't think the resistance movement is strong enough in economic and political terms to achieve the abolition of software patents anytime soon. I regret to say so but the hurdle is high and politicians won't be convinced if it's basically just the Free and Open Source Software movement that takes political action against software patents. A few venture capitalists won't tilt the scales either. There would have to be broadbased support. In Europe, the leading venture capital organization (EVCA) actually lobbied for the legislative proposal we fought against. I guess the major American venture capital associations would take similar positions.
Open-sourcing something is irrevocable only with respect to the particular version that is open-sourced, but there isn't an obligation to do the same for future versions if you're the copyright owner. Apart from that licensing aspect, the one who does most or all of the development work on a project is in strategic control. And don't forget that the WebM trademark belongs to them.
The claim was made on Twitter by Simon Phipps, former chief open source officer at Sun. I took his word for it because I didn't see anyone contradict on Twitter.
I don't discount the possibility that it could be strategically motivated FUD. However, my concern is the risk that this could represent to the FOSS community (especially the commercial vendors adopting FOSS). The risk is there until there's proof that it is just "FUD". Nevertheless, glad to see we agree on indemnification and if Google obtained a declaration of non-infringement, that would certainly be great (if it happened).
There's no such thing as 100% certainty, simply because there are too many patents out there and patent offices grant lots of patents that can be invalidated later based on prior art (if someone makes the effort) but they're granted in the first place. However, a large company like Google is in a hugely better position than smaller players to analyze the situation and to deal with it if and when it arises.
There are now different positions on WebM. In my blog post I actually mention all of them, including (in an update) Carlo Daffara's analysis, which is rather optimistic about WebM not infringing MPEG LA's patents. I never said that it does, but I admit that MPEG LA's statement that it may put together a WebM patent pool is nothing that I would advise anyone to discount as a possible scenario.
What I do say is that Google will have the biggest benefit if this works out, hence I believe it would be reasonable for Google to provide not just vague assurances but a detailed analysis of the patent situation and some form of indemnification. One key difference between H.264 and WebM is that H.264 is already used in countless commercial products, so if anyone could assert any rights against it, it normally should have happened, while VP8 has so far had much less market penetration but if it became (like some propose) part of HTML 5, then this could change overnight and result in patent enforcement.
If it takes off, they'll control it effectively. Theoretically, others could fork it, but they'll have the expertise and the brand and the strategic partnerships in place to be the driving force. They've explained recently that they also expect huge benefits in the future from Android (similar situation as with WebM).
How is Google not a commercial adopter of WebM?
A producer, like I explained above. A producer eating its own dog food, which is normal;-)
How often do companies provide indemnification for complex software?
In commercial licensing agreements that's the standard thing. In this case we talk about an open-source-style license that is, however, meant to be the basis for commercial adoption.
How often do they charge nothing for it?
You're basically saying "don't look a gift horse in the mouth" but as I explained, there are business interests involved, so this is anything but an act of charity.
How is this any different then paying MPEG LA for essentially the same guarantees, but with more hooks and complexities?
I'm not sure I understand this question well enough to answer it. H.264 is in extremely widespread commercial use, so there are strong indications that a license from MPEG LA is, in all likelihood, sufficient protection. With WebM there's some uncertainty, including that MPEG LA said it's considering putting together a patent pool for WebM...
The key point is made in the comment here, but those are complex issues and references to more detailed external material is useful to those who want to read more. I've also clicked on a number of links here over the years to find out more, though in most cases I don't. As far as I can see, I was the first to bring up the indemnification issue again and I think it's reasonable to do so in this context because it's another thing that was criticized and could have been fixed with the revised license terms.
There's no doubt that Google has made an effort to make its licensing terms more consistent and compatible with existing FOSS licenses. Maybe some of this could have been resolved beforehand if Google had talked to such organizations as the OSI and FSF.
But one important problem remains even with the new licensing terms: there's no indemnification or holding harmless in the event of patent-related problems. I asked at the end of this blog post whether it would be fair for Google to reap most of the rewards if WebM becomes a success while the commercial adopters of WebM would bear the risk in case things go wrong on the patent front. By not even providing some basic indemnification, Google calls into question that it's really sure there aren't going to be any problems.
There is a counter-threat. Troll sues Gizmo Inc. Nazgûl goes knocking on Gizmo Inc's door : "If you pay the patent troll, we will sue you with our own patent on which you also infringe. Don't pay the troll."
Contrary to being an actual defense strategy that would make any sense in the world of business, this is the case only in a few people's wild imagination.
If trolls have to sue IBM to get any money, they lose big time.
Trolls go after big players all the time, as is shown by statistics like these. Not only do they sue a lot but also do they walk away with large payments in a number of cases.
One of the largest reasons for having such a huge patent portfolio is mainly to discourage patent trolls from trying to sue IBM.
Sorry but if you deal with a troll in the sense of a non-practicing (or some say non-producing) entity, there's no way you can use your own patent portfolio to countersue. The troll has no products/services against which you can assert your patents, where you have none, a few, or tens of thosuands. There's simply no counterthreat for a lack of a target area on which to drop a bomb.
The only way to defend yourself against a troll is that you get the troll's patent invalidated or prove that you don't infringe the patent claim(s) in question. All of that has nothing to do with your own patent portfolio. If you want to invalidate the troll's patent on the basis of prior art, you can use any publication (such as a magazine article or source code published on the Internet) or a patent. It doesn't have to be your own: for prior art you can use your worst enemy's stuff.
More details on the limit of using one's own patents against trolls in this blog post; there are two sections addressing the troll question, the one under the subhead "Absolutely zero deterrent effect on "patent trolls" (non-producing entities)" and the one under "Patent busting isn't a matter of having any patents of one's own".
...if you don't ignore the fact that this is a blatant case of "patenting the goal". The patent is "here's a bunch of ideas that might work to control fuel consumption at signals, we claim them all."
I agree that that this isn't really a fully-disclosed invention. Generally, IBM is more interested in patenting as much as possible just to create patent thickets and later shut out or tax real innovators with bullying tactics. The blog post I just linked to also mentions IBM's claim (made in early 2009) to have a number of patents "larger than those from Microsoft, HP, Oracle, Apple, EMC, Accenture, and Google combined." The blog post also mentions research that shows the average commercial value of an IBM patent is fairly low as compared to the portfolios of such competitors as Microsoft. The patent that gave rise to this slashdot article may be another example.
IBM has also been a long-standing aggressive force in pushing the envelope concerning the scope of patentable subject matter in the field of software. Courts can't be lobbied the way politicians are lobbied (which is something at which IBM is also extremely aggressive) but companies can try to bring up court case after court case pushing the envelope with new arguments in order to find loopholes to extend the range of what's patentable. The recent landmark decision in Germany, effectively lowering the bar for software patentability in the largest EU member state, was related to a Siemens patent, but other landmark cases in the US as well as in Europe (at the level of the European Patent Office as well as in individual European countries such as Germany) related to legal recourse sought by IBM in order to obtain patents on "inventions" of an ever lower standard.
At the lobbying front, the FFII (a European non-governmental organization fighting software patents and pushing for open standards) listed IBM as one of the four IT companies pushing hard for an overall patent and patent court reform in Europe aiming to strengthen the rights of patent holders and the legal basis for software patents.
This doesn't mean to say that IBM is the only company doing it, let alone the only one with an interest in this, but others entered the game relatively late and IBM has a history of decades of pursuing that agenda of an ever broader scope of patentable subject matter.
Yet claiming that *users* should be indemnified *is* the raison-d'etre of patent racketeering industry.
Sorry iwbcman but I view this the very opposite way. One thing is which laws we'd like to have (or not have), and concerning software patents it seems we're in sync. Another thing is what's reasonably required under the framework that exists, whether we like it or not.
If Google puts out open-source software, it should stand by it in all respects and accept full responsibility for the legal consequences. I wouldn't look at them as just a generous donor here. They're a business, they're pursuing objectives, and if WebM (and Android, where there's the same kind of problem) becomes a big success, Google will get most of the benefit. That's why Google should not just offload most of the risk onto third parties.
In case of VP8, indemnification of "users" isn't the same as if we're talking about Linux. Only commercial users can be sued over patent infringement. In case of VP8, what matters is that those adopting it (by incorporating that code into their own software, open source or closed source) have a risk and Google would be in a much better position than those developers to (i) provide a well-documented analysis of the patent situation as opposed to vague promises/claims and (ii) provide a hold-harmless clause in the license agreement.
By getting extremely broad industry support for webm within hours of launching webm and coupling this support with patent provisions in the license which state that any filing of patent litigation against webm(vp8) will result in termination of the usage rights envisioned by license, they have dramatically reduced the likelihood of any kind of patent litigation.
That conclusion is incorrect. Those who may want to assert their rights against WebM simply won't use it in their own products, at least not until the situation has been definitively resolved. Those who want to use it in their own products, conversely, wouldn't assert patents against it anyway. You talk about broad industry support but then you should look at the list of MPEG LA contributors and compare it to the list of WebM adopters. You should then also consider the quantity and relevance of the patents contributed by those parties who haven't adopted WebM and therefore still have every possibility to assert those rights.
As long as everyone is terrified of potential patent suits those who support software patents already have their case(ie. why we supposedly need software patents) made for them by the very perceived fear. We must break this cycle.
I can tell you based on my experience in discussing patent policy with politicians that it's the very opposite when lawmakers are approached about whether software should or should not be patentable (as it happened here in Europe a few years back). In that situation, those who advocate software patents claim that there really isn't any example of serious negative impact of those patents etc., not even on open source (of which they know that it does matter to a number of politicians).
What you refer to is the question of whether "FUD" would affect the behavior of end users. That's what I said right at the start: the current legal situation is unfortunate but we have to make sure that the risk is fairly distributed between those who will ripe the most rewards and those who may bear the brunt in terms of litigation and having to rewrite entire products etc.
And not only are you wrong, but you are dangerously close to speaking out of both sides of your mouth. Choose which side you are on. If you raise FUD be aware of what master you are serving.
My concern is that software developers adopting WebM could pay the bill if things go wrong. Would it be better for those developers to get rid of all software patents? Absolutely. But if that isn't achievable anytime soon, should they then act in defiance and head potential
Wouldn't Google's acquisition of On2 Technologies mean they acquired some relevant patents too? [...] You seem very convinced Google has no patents they can use to countersue should the need arise, [...]
Just to clarify, I didn't say that I rule out Google has any patents that may read on H.264 or on some products of MPEG LA contributors. But Google as a whole has far too few patents to even take on one of the major MPEG LA members, let alone all of them. If they start that kind of "pissing contest", they'll face a very serious problem.
If Google had the necessary patent power, it would have come to the aid of HTC as well. However, HTC determined it had no alternative to paying royalties to Microsoft and Apple sued HTC (which provoked a complaint by HTC to the US International Trade Commission, but that one looks very weak).
Yet they trust the MPEG-LA promise that after 2015, they'll continue to allow H.264 for non-commercial use for free. Suuuuuuuuuure.
I would say the same about MPEG LA: don't trust vague promises. However, concerning future increases of royalty fees, they've made a very clear statement concerning the maximum level of increase, which is discussed in this article.
Apart from that, the risk if MPEG LA started to charge for non-commercial use of H.264 after 2015 is that one has to pay or has to cease using it for such purposes, while the WebM/VP8 patent problem could affect every adopter of that technology anytime now and have some really nasty consequences (cease-and-desist, injunctions, damages/backroyalties, future royalties).
I'm all for open-sourcing useful program code but the question here is whether it's fair for Google to expose an entire community, including the commercial adopters of open source, to this kind of risk. The situation surrounding Android serves as a warning. Google is unfortunately in favor of software patents and doesn't do anything against the problem. They're entitled to their patent strategy. But it's important that third parties don't run into patent problems in reliance upon Google's vague promises.
If Google really believed that WebM/VP8 was safe from a patent perspective, then why in the world don't its WebM license terms contain a hold-harmless clause or at least some basic indemnification (less value than holding harmless but better than nothing) in favor of developers adopting it?
People should think twice (at least!) before relying on any vague promises and they should also consider that Google isn't the patent powerhouse that could start a "pissing contest" with the major contributors to the MPEG LA pool. I explained Google's limits in that regard in this recent slashdot comment,
The idea of Google countersuing isn't realistic.
Thanks for providing this clarifying example but even the Sieve of Eratosthenes algorithm would (if it were new) be patentable under the new document generator ruling if any useful "technical" application were found for it (including in such fields as computer graphics or cryptographics) and if it optimized computing time INCLUSIVE_OR memory usage INCLUSIVE_OR bandwidth usage INCLUSIVE_OR other computer-specific efficiency aspects as compared to the relevant prior art for solving the same "technical" problem. You probably know that there are many European cryptography patents, so the fact that at the heart of it there's just a mathematical concept doesn't make them non-patentable because the approach I just described for making the Sieve of Eratosthenes patentable is used.
One thing is clear, however - this decision does NOT open the door for software patents "as such", as the headline seems to imply to me.
As you may very well know, the question of how to interpret "as such" is what the whole European software patent discussion has been about for a while. The BGH couldn't say in its ruling that "software as such" is herewith declared patentable because then it would act in explicit contravention of an international treaty to which Germany is a party but the BGH can through its interpretation effectively render the exclusion of software patents contained in that treaty meaningless. That's why in my other reply to this, "Please provide sample claim on 'software as such'", I asked you to show a sample claim on "software as such" the way you define it and then we'll see if that makes sense for anyone to patent. If it doesn't make sense to patent that, then the exclusion will, which is what happened in my view, have been reduced to absurdity.
From that I get that the "controllable forces of nature"-standard is still alive - either by the software overcoming a technical limitation of the computer (which, admittedly, is WIDE open to interpretation),
As you could read in the decision, they waived the requirement that the new inventive element would have to meet that standard.
One thing is clear, however - this decision does NOT open the door for software patents "as such", as the headline seems to imply to me.
Headlines have a strict length limit here, so there's probably something unclear about every headline, at least about every headline addressing a complicated field. Could you provide an example for a patent claim on what you consider to be "software as such" (but not software patentable under the take-characteristics-of-computer-into account rule)? The sample claim wouldn't have to meet novelty or inventiveness criteria but just be a simple claim that would be a "software as such" claim. It will then become apparent that "software as such" ends up being something on which no one would even want a patent. That's why it's certainly resaonable to claim that all software is patentable if all software ideas are patentable.
After a quick skimming of the document, I can only say that the/. headline is as overblown and out of context as always. The ruling is perfectly in line with the prior rulings of the BGH:
One thing is to cite principles stated in prior decisions. Another is not to apply stricter standards that were used in certain previous rulings, such as the forces-of-nature principle, which the BGH indeed applied on a variety of occasions (and that one is just one example). The prior instance, the Federal Patent Court (Bundespatentgericht) also applied tests that the BGH had established at some point, and on that basis denied patentability. The key thing is that the BGH now lowered the bar by refusing to insist on prior requirements and reducing it all to the extent that the easiest of all criteria to meet would be sufficient all on its own to justify patentability. If you disagree, please provide prior rulings that you believe set an equally low standard concerning subject matter, meaning that the BGH contented itself entirely with the mere fact that the parameters of a computer were taken into account.
From a programming point of view, if you have an AND expression with two or more components and then reduce it to just the easiest criterion to meet, it lowers the bar even though one can argue, as you did, that the criterion itself is not new.
Slashdot Mirror
Sorry poetmatt, but Groklaw didn't debunk the issue at all. As far as NEON is concerned, Groklaw hasn't reported on it yet as far as I can see. What it wrote in April about TurboHercules was somewhere between 'grossly misleading' and 'totally wrong', and the article contains several links to verify that, for an example, IBM brought patents into play (initially calling them "intellectual property") before TurboHercules ever inquired about possible problems in that regard (see here). Also, Groklaw claimed that IBM's threat letter to TurboHercules wasn't that bad because it wasn't an actual lawsuit or cease-and-desist letter, but IBM had promised in its open source patent pledge "not to assert" a list of 500 patents (see here). And there would be more examples.
I don't think a lot of people here on slashdot agree with you (poetmatt) and Groklaw's PJ that it's a good idea for any company to sue a free and open source software startup that was founded by the same person who created the Hercules open source project in 1999. In fact, a lot of loyal Groklaw readers were disappointed and some of the activists I know (as the founder of the NoSoftwarePatents campaign) were nothing short of shocked that PJ would rush to IBM's defense with an encouragement to sue the pants off an open source company. A few may have expected it from someone who's more loyal to IBM than Rush Limbaugh is to the Republican Party.
You say that it's not "IBM's fault" that Hercules users don't get the license they'd like to get, but that's the whole point of antitrust law: curbing abuse of rights (such as intellectual property rights) by companies in a dominant market position ("dominant" is actually an understatement given that IBM has a de facto monopoly on the mainframe by now).
Simon Phipps, former chief open source executive of Sun Microsystems, has just asked IBM's open source VP Bob Sutor via Twitter (with a reference to this very slashdot story) to clarify IBM's role in lobbying for software patents in New Zealand. It will be interesting to see Bob Sutor's response, should there ever be one.
When it comes to patents, IBM stands for International Bullying Machines...
My concern about ACTA is not related to copyright law but to its effect on patents. Copyright law is practically always infringed by intent, while patent infringement in the field of software is in most cases inadvertent (that's the most fundamental problem I have with software patents). It would be desirable to introduce into patent law, at least in connection with software, an independent invention defense. However, ACTA in the version I saw might do quite the opposite, treating a patent infringer as a "pirate" once he is made aware of an infringement (for an example, by a cease-and-desist letter). That's unreasonable and unjust in my view. I blogged about that.
Recently I read on Twitter that the US Trade Representative told knowledge rights activist Jamie Love that the US wouldn't mind throwing patents out of ACTA and instead the US government blames the EU for wanting patents included. Since those negotiations take place behind closed doors, it's not easy to verify that claim. However, it's more likely than not to be accurate. It would be good if EU-based activists could inquire about this (especially with help from Members of the European Parliament). With pressure from inside the EU there may be a chance to get patents thrown out of ACTA altogether. I know a lot of people here are at least equally interested in copyright issues but to many of us patents are the number one concern.
For those interested in EU processes relevant to free and open source software, here's a link to a blog post on a talk I gave on the subject (not discussing ACTA per se in detail, but with a couple of slides on EU patent policy in general) at LinuxTag in Berlin last week. LinuxTag is Germany's and probably Europe's largest open source event. The blog post I just linked to contains links to the presentation.
In 2005, venture capital investors who had backed (among others) eBay and Skype - and meanwhile also Twitter - supported my last-minute lobbying effort in the European Parliament against the EU software patent directive. The related press release mentioning Benchmark Capital (eBay, and more recently Twitter) and Danny Rimer of Index Ventures (Skype) is still online on the MySQL website although Oracle and Sun certainly do favor software patents. Guess they forgot to delete it. Other references to MySQL's position on software patents disappeared after Sun bought the company in 2008.
Those venture investors had previously supported an open letter to EU decision-makers warning against the possible consequences of an adoption of the proposed bill (which ultmately got thrown out, fortunately).
However, I also got turned down by many venture investors whom I asked to support such initiatives against software patents. I don't think the resistance movement is strong enough in economic and political terms to achieve the abolition of software patents anytime soon. I regret to say so but the hurdle is high and politicians won't be convinced if it's basically just the Free and Open Source Software movement that takes political action against software patents. A few venture capitalists won't tilt the scales either. There would have to be broadbased support. In Europe, the leading venture capital organization (EVCA) actually lobbied for the legislative proposal we fought against. I guess the major American venture capital associations would take similar positions.
In the near to mid term, I believe the Defensive Patent License (DPL) could have a very positive effect.
Open-sourcing something is irrevocable only with respect to the particular version that is open-sourced, but there isn't an obligation to do the same for future versions if you're the copyright owner. Apart from that licensing aspect, the one who does most or all of the development work on a project is in strategic control. And don't forget that the WebM trademark belongs to them.
The claim was made on Twitter by Simon Phipps, former chief open source officer at Sun. I took his word for it because I didn't see anyone contradict on Twitter.
I don't discount the possibility that it could be strategically motivated FUD. However, my concern is the risk that this could represent to the FOSS community (especially the commercial vendors adopting FOSS). The risk is there until there's proof that it is just "FUD". Nevertheless, glad to see we agree on indemnification and if Google obtained a declaration of non-infringement, that would certainly be great (if it happened).
There's no such thing as 100% certainty, simply because there are too many patents out there and patent offices grant lots of patents that can be invalidated later based on prior art (if someone makes the effort) but they're granted in the first place. However, a large company like Google is in a hugely better position than smaller players to analyze the situation and to deal with it if and when it arises.
If it's as dangerous to Google as you say, why would it then be OK for WebM adopters to be exposed to that risk?
What is your response to the assertion that multimedia isn't the patent minefield that everyone wants to (make us) believe?
There are now different positions on WebM. In my blog post I actually mention all of them, including (in an update) Carlo Daffara's analysis, which is rather optimistic about WebM not infringing MPEG LA's patents. I never said that it does, but I admit that MPEG LA's statement that it may put together a WebM patent pool is nothing that I would advise anyone to discount as a possible scenario.
What I do say is that Google will have the biggest benefit if this works out, hence I believe it would be reasonable for Google to provide not just vague assurances but a detailed analysis of the patent situation and some form of indemnification. One key difference between H.264 and WebM is that H.264 is already used in countless commercial products, so if anyone could assert any rights against it, it normally should have happened, while VP8 has so far had much less market penetration but if it became (like some propose) part of HTML 5, then this could change overnight and result in patent enforcement.
What rewards?
If it takes off, they'll control it effectively. Theoretically, others could fork it, but they'll have the expertise and the brand and the strategic partnerships in place to be the driving force. They've explained recently that they also expect huge benefits in the future from Android (similar situation as with WebM).
How is Google not a commercial adopter of WebM?
A producer, like I explained above. A producer eating its own dog food, which is normal ;-)
How often do companies provide indemnification for complex software?
In commercial licensing agreements that's the standard thing. In this case we talk about an open-source-style license that is, however, meant to be the basis for commercial adoption.
How often do they charge nothing for it?
You're basically saying "don't look a gift horse in the mouth" but as I explained, there are business interests involved, so this is anything but an act of charity.
How is this any different then paying MPEG LA for essentially the same guarantees, but with more hooks and complexities?
I'm not sure I understand this question well enough to answer it. H.264 is in extremely widespread commercial use, so there are strong indications that a license from MPEG LA is, in all likelihood, sufficient protection. With WebM there's some uncertainty, including that MPEG LA said it's considering putting together a patent pool for WebM...
The key point is made in the comment here, but those are complex issues and references to more detailed external material is useful to those who want to read more. I've also clicked on a number of links here over the years to find out more, though in most cases I don't. As far as I can see, I was the first to bring up the indemnification issue again and I think it's reasonable to do so in this context because it's another thing that was criticized and could have been fixed with the revised license terms.
There's no doubt that Google has made an effort to make its licensing terms more consistent and compatible with existing FOSS licenses. Maybe some of this could have been resolved beforehand if Google had talked to such organizations as the OSI and FSF.
But one important problem remains even with the new licensing terms: there's no indemnification or holding harmless in the event of patent-related problems. I asked at the end of this blog post whether it would be fair for Google to reap most of the rewards if WebM becomes a success while the commercial adopters of WebM would bear the risk in case things go wrong on the patent front. By not even providing some basic indemnification, Google calls into question that it's really sure there aren't going to be any problems.
There is a counter-threat. Troll sues Gizmo Inc. Nazgûl goes knocking on Gizmo Inc's door : "If you pay the patent troll, we will sue you with our own patent on which you also infringe. Don't pay the troll."
Contrary to being an actual defense strategy that would make any sense in the world of business, this is the case only in a few people's wild imagination.
If trolls have to sue IBM to get any money, they lose big time.
Trolls go after big players all the time, as is shown by statistics like these. Not only do they sue a lot but also do they walk away with large payments in a number of cases.
One of the largest reasons for having such a huge patent portfolio is mainly to discourage patent trolls from trying to sue IBM.
Sorry but if you deal with a troll in the sense of a non-practicing (or some say non-producing) entity, there's no way you can use your own patent portfolio to countersue. The troll has no products/services against which you can assert your patents, where you have none, a few, or tens of thosuands. There's simply no counterthreat for a lack of a target area on which to drop a bomb.
The only way to defend yourself against a troll is that you get the troll's patent invalidated or prove that you don't infringe the patent claim(s) in question. All of that has nothing to do with your own patent portfolio. If you want to invalidate the troll's patent on the basis of prior art, you can use any publication (such as a magazine article or source code published on the Internet) or a patent. It doesn't have to be your own: for prior art you can use your worst enemy's stuff.
More details on the limit of using one's own patents against trolls in this blog post; there are two sections addressing the troll question, the one under the subhead "Absolutely zero deterrent effect on "patent trolls" (non-producing entities)" and the one under "Patent busting isn't a matter of having any patents of one's own".
...if you don't ignore the fact that this is a blatant case of "patenting the goal". The patent is "here's a bunch of ideas that might work to control fuel consumption at signals, we claim them all."
I agree that that this isn't really a fully-disclosed invention. Generally, IBM is more interested in patenting as much as possible just to create patent thickets and later shut out or tax real innovators with bullying tactics. The blog post I just linked to also mentions IBM's claim (made in early 2009) to have a number of patents "larger than those from Microsoft, HP, Oracle, Apple, EMC, Accenture, and Google combined." The blog post also mentions research that shows the average commercial value of an IBM patent is fairly low as compared to the portfolios of such competitors as Microsoft. The patent that gave rise to this slashdot article may be another example.
IBM has also been a long-standing aggressive force in pushing the envelope concerning the scope of patentable subject matter in the field of software. Courts can't be lobbied the way politicians are lobbied (which is something at which IBM is also extremely aggressive) but companies can try to bring up court case after court case pushing the envelope with new arguments in order to find loopholes to extend the range of what's patentable. The recent landmark decision in Germany, effectively lowering the bar for software patentability in the largest EU member state, was related to a Siemens patent, but other landmark cases in the US as well as in Europe (at the level of the European Patent Office as well as in individual European countries such as Germany) related to legal recourse sought by IBM in order to obtain patents on "inventions" of an ever lower standard.
At the lobbying front, the FFII (a European non-governmental organization fighting software patents and pushing for open standards) listed IBM as one of the four IT companies pushing hard for an overall patent and patent court reform in Europe aiming to strengthen the rights of patent holders and the legal basis for software patents.
This doesn't mean to say that IBM is the only company doing it, let alone the only one with an interest in this, but others entered the game relatively late and IBM has a history of decades of pursuing that agenda of an ever broader scope of patentable subject matter.
Yet claiming that *users* should be indemnified *is* the raison-d'etre of patent racketeering industry.
Sorry iwbcman but I view this the very opposite way. One thing is which laws we'd like to have (or not have), and concerning software patents it seems we're in sync. Another thing is what's reasonably required under the framework that exists, whether we like it or not.
If Google puts out open-source software, it should stand by it in all respects and accept full responsibility for the legal consequences. I wouldn't look at them as just a generous donor here. They're a business, they're pursuing objectives, and if WebM (and Android, where there's the same kind of problem) becomes a big success, Google will get most of the benefit. That's why Google should not just offload most of the risk onto third parties.
In case of VP8, indemnification of "users" isn't the same as if we're talking about Linux. Only commercial users can be sued over patent infringement. In case of VP8, what matters is that those adopting it (by incorporating that code into their own software, open source or closed source) have a risk and Google would be in a much better position than those developers to (i) provide a well-documented analysis of the patent situation as opposed to vague promises/claims and (ii) provide a hold-harmless clause in the license agreement.
By getting extremely broad industry support for webm within hours of launching webm and coupling this support with patent provisions in the license which state that any filing of patent litigation against webm(vp8) will result in termination of the usage rights envisioned by license, they have dramatically reduced the likelihood of any kind of patent litigation.
That conclusion is incorrect. Those who may want to assert their rights against WebM simply won't use it in their own products, at least not until the situation has been definitively resolved. Those who want to use it in their own products, conversely, wouldn't assert patents against it anyway. You talk about broad industry support but then you should look at the list of MPEG LA contributors and compare it to the list of WebM adopters. You should then also consider the quantity and relevance of the patents contributed by those parties who haven't adopted WebM and therefore still have every possibility to assert those rights.
As long as everyone is terrified of potential patent suits those who support software patents already have their case(ie. why we supposedly need software patents) made for them by the very perceived fear. We must break this cycle.
I can tell you based on my experience in discussing patent policy with politicians that it's the very opposite when lawmakers are approached about whether software should or should not be patentable (as it happened here in Europe a few years back). In that situation, those who advocate software patents claim that there really isn't any example of serious negative impact of those patents etc., not even on open source (of which they know that it does matter to a number of politicians).
What you refer to is the question of whether "FUD" would affect the behavior of end users. That's what I said right at the start: the current legal situation is unfortunate but we have to make sure that the risk is fairly distributed between those who will ripe the most rewards and those who may bear the brunt in terms of litigation and having to rewrite entire products etc.
And not only are you wrong, but you are dangerously close to speaking out of both sides of your mouth. Choose which side you are on. If you raise FUD be aware of what master you are serving.
My concern is that software developers adopting WebM could pay the bill if things go wrong. Would it be better for those developers to get rid of all software patents? Absolutely. But if that isn't achievable anytime soon, should they then act in defiance and head potential
Yes, the problem is that there are some really bad patent thickets out there, and codecs are one of the worst patent thickets (also in terms of enforcement).
Wouldn't Google's acquisition of On2 Technologies mean they acquired some relevant patents too? [...] You seem very convinced Google has no patents they can use to countersue should the need arise, [...]
Just to clarify, I didn't say that I rule out Google has any patents that may read on H.264 or on some products of MPEG LA contributors. But Google as a whole has far too few patents to even take on one of the major MPEG LA members, let alone all of them. If they start that kind of "pissing contest", they'll face a very serious problem.
If Google had the necessary patent power, it would have come to the aid of HTC as well. However, HTC determined it had no alternative to paying royalties to Microsoft and Apple sued HTC (which provoked a complaint by HTC to the US International Trade Commission, but that one looks very weak).
Yet they trust the MPEG-LA promise that after 2015, they'll continue to allow H.264 for non-commercial use for free. Suuuuuuuuuure.
I would say the same about MPEG LA: don't trust vague promises. However, concerning future increases of royalty fees, they've made a very clear statement concerning the maximum level of increase, which is discussed in this article.
Apart from that, the risk if MPEG LA started to charge for non-commercial use of H.264 after 2015 is that one has to pay or has to cease using it for such purposes, while the WebM/VP8 patent problem could affect every adopter of that technology anytime now and have some really nasty consequences (cease-and-desist, injunctions, damages/backroyalties, future royalties).
I try to avoid "See I Told Ya So" types of posts, but in this case SCNR: WebM/VP8 patent risk for software developers" (and I previously made that suggestion on my blog in this post on video codecs)
I'm all for open-sourcing useful program code but the question here is whether it's fair for Google to expose an entire community, including the commercial adopters of open source, to this kind of risk. The situation surrounding Android serves as a warning. Google is unfortunately in favor of software patents and doesn't do anything against the problem. They're entitled to their patent strategy. But it's important that third parties don't run into patent problems in reliance upon Google's vague promises.
If Google really believed that WebM/VP8 was safe from a patent perspective, then why in the world don't its WebM license terms contain a hold-harmless clause or at least some basic indemnification (less value than holding harmless but better than nothing) in favor of developers adopting it?
People should think twice (at least!) before relying on any vague promises and they should also consider that Google isn't the patent powerhouse that could start a "pissing contest" with the major contributors to the MPEG LA pool. I explained Google's limits in that regard in this recent slashdot comment, The idea of Google countersuing isn't realistic.
Thanks for providing this clarifying example but even the Sieve of Eratosthenes algorithm would (if it were new) be patentable under the new document generator ruling if any useful "technical" application were found for it (including in such fields as computer graphics or cryptographics) and if it optimized computing time INCLUSIVE_OR memory usage INCLUSIVE_OR bandwidth usage INCLUSIVE_OR other computer-specific efficiency aspects as compared to the relevant prior art for solving the same "technical" problem. You probably know that there are many European cryptography patents, so the fact that at the heart of it there's just a mathematical concept doesn't make them non-patentable because the approach I just described for making the Sieve of Eratosthenes patentable is used.
One thing is clear, however - this decision does NOT open the door for software patents "as such", as the headline seems to imply to me.
As you may very well know, the question of how to interpret "as such" is what the whole European software patent discussion has been about for a while. The BGH couldn't say in its ruling that "software as such" is herewith declared patentable because then it would act in explicit contravention of an international treaty to which Germany is a party but the BGH can through its interpretation effectively render the exclusion of software patents contained in that treaty meaningless. That's why in my other reply to this, "Please provide sample claim on 'software as such'", I asked you to show a sample claim on "software as such" the way you define it and then we'll see if that makes sense for anyone to patent. If it doesn't make sense to patent that, then the exclusion will, which is what happened in my view, have been reduced to absurdity.
From that I get that the "controllable forces of nature"-standard is still alive - either by the software overcoming a technical limitation of the computer (which, admittedly, is WIDE open to interpretation),
As you could read in the decision, they waived the requirement that the new inventive element would have to meet that standard.
One thing is clear, however - this decision does NOT open the door for software patents "as such", as the headline seems to imply to me.
Headlines have a strict length limit here, so there's probably something unclear about every headline, at least about every headline addressing a complicated field. Could you provide an example for a patent claim on what you consider to be "software as such" (but not software patentable under the take-characteristics-of-computer-into account rule)? The sample claim wouldn't have to meet novelty or inventiveness criteria but just be a simple claim that would be a "software as such" claim. It will then become apparent that "software as such" ends up being something on which no one would even want a patent. That's why it's certainly resaonable to claim that all software is patentable if all software ideas are patentable.
After a quick skimming of the document, I can only say that the /. headline is as overblown and out of context as always. The ruling is perfectly in line with the prior rulings of the BGH:
One thing is to cite principles stated in prior decisions. Another is not to apply stricter standards that were used in certain previous rulings, such as the forces-of-nature principle, which the BGH indeed applied on a variety of occasions (and that one is just one example). The prior instance, the Federal Patent Court (Bundespatentgericht) also applied tests that the BGH had established at some point, and on that basis denied patentability. The key thing is that the BGH now lowered the bar by refusing to insist on prior requirements and reducing it all to the extent that the easiest of all criteria to meet would be sufficient all on its own to justify patentability. If you disagree, please provide prior rulings that you believe set an equally low standard concerning subject matter, meaning that the BGH contented itself entirely with the mere fact that the parameters of a computer were taken into account.
From a programming point of view, if you have an AND expression with two or more components and then reduce it to just the easiest criterion to meet, it lowers the bar even though one can argue, as you did, that the criterion itself is not new.