I get really tired of people saying that the patents on H.264 are a "red herring." How is open source software like Firefox supposed to use H.264 if they have to pay massive licensing fees? That enforcement thus far has been weak to non-existent doesn't imply that it will continue to be so in the future.
H.264 patents are a red herring because WebM is not known to be patent free either. The assumption is that patent holders are waiting for WebM to gain traction before springing the lawsuits.
You don't know the H.264 devil any better. It's just as likely that some lone patent wolf will come forward and go after H.264. It's simply FUD to say that WebM is somehow more susceptible. Just because MPEG-LA makes you pay for their set of patents doesn't mean they're protecting you against patents they don't hold.
I'd say you know the H264 devil a little better. Why? Because its spec and patents have been extremely well documented for a decade (or so), commented on, and implemented (there are at least 10 implementations I know of).
Whereas WebM's details first came to light less than a year ago.
You're right that it is possible that either still violate some patent out in the wild. BUT if you were to weigh the odds -- a nearly decade old open standard technology that has openly solicited and worked to get all potential patent holders in the pool OR a technology closed and proprietary until last year. You really call even money on that?
It seems to be widely accepted that WebM is a minor variation on H.264 with changes specifically designed to avoid the H.264 patents, which as you mention have been openly published and well documented for years.
Since large segments of H.264 were simply dropped for WebM, apparently there's only about 49 H.264 patents total (out of over a thousand) that could even remotely apply. That seems a reasonable number for On2 to work around, and for Google (and everyone else listed on their supporters page)'s lawyers to double check.
So now we are speculating about a random patent troll who happens to hold a patent that doesn't read on H.264 but does read on a simplified version of H.264 with some minor patent avoiding variations. Seems to me that if you're arguing H.264 is clean, then so is WebM.
Your interpretation doesn't match those of people who have analyzed it. The problem with WebM is that it may infringe on H264 patents! And its not clear they have done enough to avoid the problems. H264 has come together to form a very strong patent pool. None of the patents can be asserted against H264 (nor can the partner companies in general), but any of them can be asserted against WebM.
"But as noted in my previous post, merely being published by Google doesn’t guarantee that it is. Microsoft did similar a few years ago with the release of VC-1, which was claimed to be patent-free but within mere months after release, a whole bunch of companies claimed patents on it and soon enough a patent pool was formed."
"VP8 is simply way too similar to H.264: a pithy, if slightly inaccurate, description of VP8 would be "H.264 Baseline Profile with a better entropy coder". Even VC-1 differed more from H.264 than VP8 does, and even VC-1 didn’t manage to escape the clutches of software patents."
"Most importantly, Google has not released any justifications for why the various parts of VP8 do not violate patents, as Sun did with their OMS standard: such information would certainly cut down on speculation and make it more clear what their position actually is."
And not about patents, but the quality of the spec:
"The spec consists largely of C code copy-pasted from the VP8 source code up to and including TODOs, optimizations, and even C-specific hacks, such as workarounds for the undefined behavior of signed right shift on negative numbers. In many places it is simply outright opaque. Copy-pasted C code is not a spec. I may have complained about the H.264 spec being overly verbose, but at least it’s precise. The VP8 spec, by comparison, is imprecise, unclear, and overly short, leaving many portions of the format very vaguely explained. Some parts even explicitly refuse to fully explain a particular feature, pointing to highly-optimized, nigh-impossible-to-understand reference code for an explanation. There’s no way in hell anyone could write a decoder solely with this spec alone."
But maybe Google will fix it? Ummm think again;
"Update: it seems that Google is not open to changing the spec: it is apparently "final", complete with all its flaws."
I just don't see how one can feel equally comfortable with WebM.
"Dark Shikari makes several considerations, some related to the implementation itself, and many related to its “patent status”. For example: “VP8’s intra prediction is basically ripped off wholesale from H.264″, without mentioning that the intra prediction mode is actually pre-dating H264; actually, it was part of Nokia MVC proposal and H263++ extensions published in 2000, and the specific WebM implementation is different from the one mentioned in the “essential patents” of H264 as specified by the MPEG-LA.
If you go through the post, you will find lots of curious mentions of “sub-optimal” choices:
[big list of the identical features with minor differences between H.264 and VP8]
What we can obtain from this (very thorough – thanks, Jason!) analysis is the fact that from my point of view it is clear that On2 was actually aware of patents, and tried very hard to avoid them. It is also clear that this is in no way an assurance that there are no situation of patent infringements, only that it seems that due diligence was performed. Also, WebM is not comparable to H264 in terms of technical sophistication (it is more in line with MPEG4/VC1) but this is clearly done to avoid recent patents; some of the patents on older specification are already expired (for example, all France Telecom patents on H264 are expired)."
There's also a follow up here which discusses the thought process behind the 49 potential H.264 patents:
That's not an analysis, but a commentary on the work Jason did.
But he says a lot of BS, like, "In fact, one of the most brain damaged things of the current software patent situation is the fact that if a company performs a patent search and finds a potential infringing patent it may incur in additional damages for willful infringement (called “treble damages”). So, the actual approach is to perform the same analysis, try to work around any potential infringing patent, and for those close enough cases that cannot be avoided try to steer away as much as possible. So, calling Google out for releasing the study on possible patent infringement is something that has no sense at all: they will never release it to the public."
Patent law makes it VERY clear that treble damages occur with WILLFUL infringement. Good faith efforts, the inevitably fail, won't be subject to treble damages.
It seems like he's bending over backwards to show that Google shouldn't disclose anything, which is absurd.
His opinion that the suboptimal choices means that WebM has avoided the H264 patents seems very suspect to me. And contradictory, because if they did do what he said, and did accidentally infringe, by his (incorrect) logic they'd be liable for treble damages. Blech.
Mozilla's on the record as being told by their counsel not to openly publish patent research they did for Theora. They weren't happy about it, because it opens them up to FUD, but we all know patent law is messed up, one more absurdity shouldn't surprise us.
What I'd "call even money on" is that patent holders who are looking for a piece of the video decoding royalty pie would have jumped on the MPEG-LA gravy train already. I also would bet that Google's legal team knows what they're doing.
Google already knows about them. And has bet the future on WebM anyway. I trust Google's legal counsel more than I trust you.
What if H.264 infringes on some of Google's patents? Google could countersue and go after members of MPEG-LA, or even end-users of H.264. Google's patent license only covers Google's WebM implementation.
You do realize that Google's legal counsel has very little say in this. Google's engineers are making the call and the counsel is just providing legal advice. The legal counsel doesn't know what is infringing on what.
With that said, you'd probably say that you trust Google's engineers more than me. I'd hope so. You have no idea who I am.
> Google's engineers are making the call and the counsel is just providing legal advice. The legal counsel doesn't know what is infringing on what.
[citation needed]
What makes you think that a big company with enormous potential for legal liability would let engineers make decisions that are of legal consequence, like whether to aggressively push a video format amidst a patent minefield?
Do you think the engineers wrote the patent license too?
If so then what is the reason Google is not providing patent indemnification? If it does, MS would bundle it with IE9 (perhaps even the OS) instantly allowing about 40% of worldwide to seamlessly watch WebM content.
I guess Google is afraid of being sued for billions for the hundreds of millions of installs that Windows and/or IE9 ship.
I wasn't aware that they did -- interesting. But actually that only covers "any Microsoft software licensed for a fee for your end use." [0] Since Google does not charge end-users for any of its software that it distributes, you could argue that Google's indemnification program is just as extensive as Microsoft's.
Really? That's your argument? If that's your argument an equally valid one is you get what you pay for. ;-)
As a consumer you stick with WebM and all that the royalty freeness buys you. I'll stick with H264 knowing that MS has already paid the royalty, the patent pool has virtually every player in the game, and MS indemnifies me as an end user. We'll call it a day.
Sounds fine if all you want to do is go home, watch TV, and surf the Internet. But if that's what you're doing, you're probably not going to get sued anyway.
This is a community of entrepreneurs. What's at stake here is the next YouTube. If you're just a fledgling startup that shows videos online, can you afford a sudden surge in popularity, or will it bankrupt you in patent royalties? Can you estimate your future costs in royalties, or is it subject to change when MPEG-LA thinks it can get some more money from you? If you want to use video in some disruptive new medium, what will MPEG-LA decide to charge for that once they see its promise? Or will they refuse to license the patents at all for this purpose, in favor of giving MPEG-LA members exclusive dibs on this new medium?
I think the MPEG-LA's terms are pretty good for the next Youtube. First free web video is free. If you charge your customers, for the first 100K subscribers, it's free.
100,001 - 250,000 subscribers/year = $25,000; 250,001 - 500,000 subscribers/year = $50,000; 500,001 - 1,000,000 subscribers/year = $75,000; and more than 1,000,000 subscribers/year = $100,000.
That's about 10 to 25 cents per paying customer PER YEAR with first 100K subscribers free. And there are limits and caps on the increases.
Are you Kidding, Court Corruption STOPS the Real Inventors of the MPEG LA video Decoding - iViewit Technology invented it and has no rights.. DeniedPatent.com
Is there any non trivial piece of software that's known to be patent free? Isn't it probable, even likely, that there are additional patent holders who'll come after H.264 implementations eventually?
Possible, but not probable. H.264 has been researched extensively prior to it being broadly used. Compare that with WebM, which was not vetted in the same way H.264 was.
For the record, it appears Mozilla, Inc is very rich and could almost certainly just afford the fees and be done with it. That way they'd close the loop and we'd all adopt h264, pay the money, and be on our way to HTML5 video.
It's clear that the adoption of webm is about control and changing the conversation: Google & Mozilla want to drive the direction and own the space. Let's not forget, mozilla owns the 'open source' identity and needs to keep it going, whilst Google has a significantly vested interest with YouTube.
The problem isn't financial; it's ideological. The GPL says that no additional restrictions must be placed on the end user. The H.264 license says that only personal and non-commercial use is allowed.
I'm not sure whether they legally conflict, but the H.264 license is obviously against the spirit of the GPL.
For example, by trying to use the codec that is provided by the underlying operating system. The latest versions of both Windows and OS X ship with a H264 codec.
Yes, Linux is a bit of a problem. In case of Android and MeeGo, the distributor or the manufacturer can deal with licensing issues and ship the device with a licensed codec.
The real problem is non-commercial desktop distributions such as Debian or Fedora; it could still check for the presence of x264 or FFmpeg (with h264 support) on the system and use it if it's available, and defer the responsibility of licensing to the user or distributor.
I'm not sure why Firefox has to support H.264 on all its platforms, but in this case it can, through Flash.
Even if it couldn't, why would it be a bad thing for Firefox to support OS-supplied codecs on OS X and Windows, and a set of built-in codecs, such as WebM, on Linux?
Sure but the license itself does imply that. The price licensees pay is pro-rated based on usage but is also capped at 6.5 million until 2015. The license will be renewed every 5 years but will not increase more than 10%:
The first term of the License runs through 2010, but the License will be renewable for successive five-year periods for the life of any Portfolio patent on reasonable terms and conditions which may take into account prevailing market conditions, changes in technological environment and available commercial products at the time, but for the protection of licensees, royalty rates applicable to specific license grants or specific licensed products will not increase by more than ten percent (10%) at each renewal.
They used to raise the cap by 10% every year, then last year it jumped 30% and got fixed for the next 5 years. I assume that added clarity was a concession to pressure from WebM even though it meant a higher price hike right now. They also specifically added text clarifying that the cap was not limited to a 10% yearly rise so the max amount payable is explicity unknown and unlimited.
The maximum annual royalty (“cap”) for an Enterprise (commonly controlled Legal Entities) is $3.5 million per year 2005-2006, $4.25 million per year 2007-08, $5 million per year 2009-10, and $6.5 million per year in 2011-15.
…and you're right that there is a footnote saying. "Annual royalty caps are not subject to the 10% limitation" which is important.
I do find it a bit strange to hear people say the license fees are unknown. Even if you assume an unlimited cap, you can schedule out what the pro-rated fees will look like for you for the next 5-10 years based on your projected growth. You can argue that they are too high, but I don't think you can argue that they are unknown. If nothing else they are bounded on the high end.
Are you saying that last year, you could have predicted the licence fee cap would have been $6.5 million and not 5.5 or 7.5 or 10.5? If you couldn't then it was unknown until they announced it. Similarly, what do you predict it will be in 5 years and each of the next 20 years till the patents run out? Are you sure?
No, I'm agreeing that you're right that the cap is effectively unknown. I missed that footnote (shame on me). My point is that even with an unknown cap, the license rates are predictable for the foreseeable future:
Free under 100k units
$0.20 per unit above 100k
$0.10 per unit above 5 million units
Now, I'm no fan of software patents and I wish they would be done away with. But given the choice between that and the practical/technical/patent uncertainty of webM I don't feel like those are massive payments.
I'm glad Google open sourced the on2 codec and I can even see that maybe the H.264 prices have been influenced by that move. But from a practical standpoint, I think Apple and Microsoft are making a reasonable move. People say it's short-sighted, but I think they are relatively protected.
