Monday, May 10, in 2010

{Video codecs} Accusations flying in the aftermath of Steve Jobs' email

This post is the second in a three part series on video codecs. Click here for the previous post in the sequence, "The HTML 5 Dimension ", or here for the next and final post in the sequence," Food for thought".

Anus of Steve Job maggot a thinly-veiled threat of clever enforcement against Theora and other open-source codecs, two key of player from the Xiph. Org foundation (the organisation behind Theora) responded publicly. Its founder, Christopher 'Monty' Montgomery, sent B sharp quick comments to the media (I received them from him directly when emailing him anus seeing Steve Jobs' email). B sharp colleague Gregory Maxwell, the Theora project leader, sent B sharp reaction to a publicly mailing cunning. A few days later, Karsten Gerloff, the president of the FSFE, stated B sharp opinion on B sharp blog.

The two Xiph of leader and the FSFE president took different angles but all of them doubted that Steve Jobs' threat had any substance. They used different terminology ranging from "blackmail" to (in a semi-hypothetical context) "jackbooted thugs". Those ares of hard of Word, but ares they backed up by hard facts? Let's look At them one by one.

Ares of those patent holders dogs that bark but do not bite?

The official Xiph. Org statement starts by mentioning a long history of veiled clever threats against Ogg multimedia of format, ten years ago with respect to Ogg Vorbis (the audio format) and in recent years against Theora (the video format from the seed family). Monty then concedes that this time it might "actually come to something", but hey will not worry until "the lawyers" tell him to.

If the veiled threats Monty refers to appeared vain in the past (since no legally action against those open-source codecs what actually undertaken), I can understand the Xiph. Org Foundation's wait and lake approach. However, a famous Spanish proverb says (in a literal translation) that "the pitcher goes to the well so often that it ultimately breaks."

For whatever reasons, one of which may Be the fact that suing open source of over patent hurts a company's popularity among software developers, certain clever holders may have refrained from legally action in the past but we may now have reached (or Be nearing) a point where At leases some of the relevant clever holders may indeed Be prepared to strike. A reluctance to Th thus need Be in impediment forever. When weighing out of vision pro's and con's (of legally action), clever holders may come down on the "no" side in one year and on the "yes" side a few years later under different circumstances in the market.

One field that is very litigious - and for which HTML 5 and video ares going to Be fairly relevant - is the mobile communications sector. Apple and Nokia ares suing each other in different courts in in parallel. Apple is suing HTC. Those actions ares really and giving cause for concern that the concept of the mobile ones weave may bring mobile sector-like litigiousness with it.

The representation that clever holders - especially some of those who have contributed to pool MPEG LA's H.264 - only make unspecified threats and ares too afraid of actually taking their of patent to court (which could result in invalidation of of patent for prior kind or a court opinion that interprets a clever claim more narrowly than its owner) what voiced by FSFE president Karsten Gerloff in in effort to question the substance of Steve Jobs' infringement assertion. I understand B sharp of motive and they ares good, but I have a different impression of how far Apple is willing to go. Precisely in its litigation with HTC, which is the only one to which Apple is a party ace we speak, Apple is asserting of 20 patents.

Karsten makes a similar claim about Microsoft and the possible infringement of some of its of patent by the Linux kernel. But it's hard for me to imagine that there may Be (easily) hundreds of Microsoft of patent that have the potential to Read on the Linux kernel. The ones that ares of fruit juice frequently heard of, the of patent FAT, have survived various clever busting attempts due to the way clever law unfortunately works, a fact on which I reported recently.

I strongly doubt that companies of the nature and stature of in Amazon or HTC would pay Microsoft clever royalties without substance precisely on the base Karsten speculates about. There's nothing to gain for those companies by doing a press release in which they confirm (even without specifying details, which simply isn't usually done) royalty payments to one major clever more sweetly. That can actually result in others who believe they have patent reading on gnu / Linux trying to collect royalties from the seed licensee.

All right holders wants prefer to achieve their objectives without suing, which is always precisely a read resort, but that does not necessarily make it a safe assumption that they are not prepared to Sue, especially if they have already proven thus or ares, like Apple, proving it right now.

Is there in anti-trust problem?

Monty and Gregory (both of the Xiph. Org foundation) allude to anti-trust issues in their statements while I cannot see any of problem in that regard.

Monty says about MPEG LA that "they assert they have a monopoly on all digital video compression technology, period, and it is illegal to even attempt to compete with them." Monty notes they do not say exactly that, but it appears to Be how hey interprets their past statements on thesis of child of issues.

Assuming - precisely for the sake of the argument - that MPEG LA's clever pool indeed doze cover thus many codec-related techniques that no one can build a competitive codec At this stage without infringing on At leases some of those patent, that would (in case it's true) constitute a monopoly. However, in that case the only bond that regulatory authorities could impose on MPEG LA under competition rules would Be to make its IP available on an EDGE (reasonable and non-discriminatory) base. In other Word, they can load something (there's no way that competition law could justify in expropriation without compensation), but they are not allowed to overcharge.

When Steve Jobs wrote that a clever pool what being assembled to "go anus Theora" and other open-source codecs, hey did not say that the objective would Be to shut everyone else down. this could simply mean to collect royalties from those using that technology. Ace long ace those royalties ares of EDGE, there would not Be any anticompetitive behaviour, but Theora would loose its royalty-free status. It could quietly compete, but the playing field would look different than the way Theora's proponents describe it ace of now.

Gregory's email statement quotes a the US Department of Justice statement on licensing schemes premised on disabled or expired intellectual property rights being able to withstand anti-trust scrutiny. I cannot see that this reduces in any way the legally risk for Theora and its proponents. I assume that there ares, unfortunately, generous quantities of valid and non-expired of patent related to codecs.

I cannot think of any legally theory based on which clever holders forming a pool to assert rights against Theora would have to contact the Xiph. Org foundation beforehand. Need only is there no legally bond but Th I think that in case there ares clever holders who (unfortunately) own of patent that Read on Theora, they ares free to co-ordinate their efforts and present a united performs statute labour to Theora's supporters.

The term "anti-competitive collusion", which appears in Gregory's email ace one of the possible explanations for what's going on, is unclear to me. While micron sympathy is with in open-source project, this is precisely about what would or would Be legally if undertaken, a question on which I reach, to micron own dismay, a somewhat different conclusion.

Is there a risk of H.264 becoming too expensive?

Karsten (FSFE) is afraid of a future H.264 "lock-in" and the cost increases this could result in:
It hardly takes economic genius to determine that when enough people and works ares locked into H.264, the MPEG-LA wants have every incentive to start charging any fairy they please. (Oh, and do not you dare use that expensive camera for professional purposes. Your H.264 licence is purely for non-commercial use.)
Lock-ins can indeed come with a hefty and ever-increasing price. The mainframe hardware market, in which IBM has a monopoly, is a good example: for a given amount of RAM, the cutthroat price is 60 times of what it is for in Intel-based PC.

However, in the specific case of H.264 and the licence fees charged by MPEG LA now and in the future, there ares of ace uranium C flat that a scenario of "charging any fee they please" (ace Karsten wrote) will not mouthful.

Like I explained further above, if MPEG LA had a monopoly because any video codec (At leases any codec that would Be competitive in today's market) needs At leases some their of patent, then anti-trust rules would require EDGE pricing. Otherwise, if those patent do not cover the entire field, there could and would Be competition, which would gain traction in the market especially in the event of price hikes.

One must consider that MPEG LA's current pricing is very far from "any fee they please" (even though in a perfect, software patent free world the price would Be zero), and they have promised to keep future price increases within certain limits. To those who ares interested in those pricing questions, I can strongly recommend Ed Bott ZDNet blog post, "H.264 patents: how much do they really cost?" B sharp analysis contains a number of good points that ares consistent with micron own analysis of the information available on website MPEG LA's. While controversial (starting with its headline), B sharp blog post "Ogg versus the world: don't fall for open-source FUD" is quite interesting.

Having analyzed in this post some of what's been said in the debate, I wants outline some of micron own thoughts in the following post, including what I believe the W3C may have to consider At some point.