
Daring Fireball: On Submarine Patents vis-à-vis H.264 and Ogg Theora - barredo
http://daringfireball.net/2010/03/on_submarine_patents
======
gjm11
Gruber writes: _There are two sets of patents that Ogg Theora likely
violates._ Likely? It would be interesting to know whether he has any actual
grounds for making that claim, other than the fact that the MPEG LA are
spreading FUD to that effect.

 _And if you’re not willing to concede that Ogg Theora is vulnerable to patent
claims, well, then I doubt you’re reading this._ It appears that Gruber thinks
it's so obvious to any reasonable person that Ogg Theora is "vulnerable to
patent claims" that the only people who would disagree are those closed-minded
enough that they would avoid reading a different opinion.

Of course "vulnerable to patent claims" is weasel language. Almost everything
is "vulnerable to patent claims" in the sense that you can't know for sure
that at any moment someone won't emerge from the woodwork and claim they've
got a patent on it. But: for H.264 it's _known_ that there are people claiming
to have patents on the technology, namely the MPEG LA; and it's _known_ that
they demand payment for (certain kinds of) using it. For Theora no such thing
is known, its creators have disclaimed patent rights, and it's been around for
a long time without anyone making such claims. For both H.264 and Theora it's
_also possible_ that at some point in the future someone might come forward
and say "oh, by the way, I own this and this and this; please pay me $1M/year
or get sued".

But if someone is trying to choose betwen Theora and H.264 on the basis of
their patent situation, it's daft to say (as Gruber does) that the only
consideration is that possibility of getting torpedoed by submarine patents.
The big difference in the situation with _known_ patents is obviously relevant
too.

------
natrius
HTML5 video is effectively a tech demo at the moment. Nothing relies on it.
The HTML5 video situation doesn't really feel worth discussing until Google
plays their hand in regard to On2 VP8. If they freely license the codec and
promise to use their patent arsenal to defend licensees against lawsuits, VP8
will become the most practical license, except for low-powered devices like
mobile phones until chips are developed to encode and decode the format via
hardware.

Firefox's current H.264 stance isn't practical, but it doesn't have to be.
HTML5 video won't matter for years (I'd estimate two years after the release
of IE9), and by then, the landscape will have changed.

~~~
ZeroGravitas
A main design consideration of VP8 was fast decode on low powered mobile ARM
chips.

This is similar to Windows users being confused that Mac OS X or Linux doesn't
need anti-virus, and actually thinking this is a fault with these strange new
operating systems. H.264 is just a bit of a pig and yet its resulting
requirement for special considerations to be made to compensate is interpreted
as a failing in others that don't need it.

------
guelo
I found the linked-to article at Streaming Media more interesting than
Gruber's Theora fear mongering.
<http://www.streamingmedia.com/article.asp?id=11746>

Specifically this:

 _For 15 years, Xiph.Org has carefully "played by the rules," fully within the
bounds, intent, and letter of intellectual property and patent law. For the
past ten years we've informed the entire world, including MPEG LA, of our
specifications and algorithms in detail. We've requested in open letters that
any group believing we are infringing to inform us so that we make take
immediate corrective action.

I predict that MPEG LA may counter that they know groups have been pressured
into licensing patents in order to use Theora. This has been a recent back-
room assertion. You might want to ask point blank if MPEG LA itself or any of
its constituent members has engaged in this practice, thus manufacturing the
evidence that "vindicates" their patent allegations. _

~~~
ZeroGravitas
More interesting is the MPEG-LA quote itself. Gruber summarises it as " MPEG-
LA has stated that they believe otherwise" i.e. MPEG-LA have claimed that
Theora uses their patents. What the CEO actually says is intended to give that
impression, but never actually says it:

 _"In addition, no one in the market should be under the misimpression that
other codecs such as Theora are patent-free."_

This is a beautifully crafted sentence because Theora isn't patent free, it
just so happens that all the patents we know about are licenced freely for
anyone to use. (Similarly VP6, 7, 8 are all presumably patented but Google now
owns those patents and can do what they like with them.)

" _Virtually all codecs are based on patented technology"_

Again, whose patents are we talking about here? On2/Google's, MPEG-LAs?, some
random trolls? It is left unspecified. And which codecs? Not all of them, only
"virtually" all.

" _and many of the essential patents may be the same as those that are
essential to AVC/H.264._ "

Keyword "may", as in "might not", or as in I'm very carefully not saying what
you think I'm saying by adding qualifiers.

" _Therefore, users should be aware that a license and payment of applicable
royalties is likely required to use these technologies developed by others,
too._ "

There's a "likely" which you'd think is stronger than a "may" but only applies
_if_ you are using technologies developed by others. So this "likely" depends
on you accepting the "may" in the previous sentence.

" _MPEG LA would consider offering on additional licenses that would make
these rights conveniently available to the market under a single license as an
alternative to negotiating separate licenses with individual patent holders._
"

This is just stating the MPEG-LA business model, batching up patent rights for
easier licencing. It does not say that the hypothetical patent owners are
currently part of any MPEG patent pool.

~~~
ZeroGravitas
I'd actually missed the so-called "clarification" which, ihmo, makes it clear
he's trying very hard to create a false impression:

 _"Ozer: It sounds like you are saying that some of your patent holders own
patents that are used in Ogg. Is that correct?

Horn: We believe that there are patent holders who do.

Ozer: It sounds like you’ll be coming out and basically saying that to use
Ogg, you need to license it from MPEG LA. Is that correct?

Horn: That is not what we said. We said no one in the market should be under
the misimpression that other codecs such as Theora are patent-free_"

So specifically asked about the patents in the H.264 pool, he responds with
the non-specific "there are patent holders who do" (yes, On2 now Google) and
this is couched with a "we believe".

And when asked directly, he repeats his non-statement about Theora having
patents on it. Yes, we know that. What about patents held by people who are
looking for money for them?

------
anamax
While "submarine patents" is a catchy term, they aren't actually relevant to
this discussion.

Interestingly enough, the article cites a wikipedia discussion that explains
why. (Short version - submarine patents, secret applications that turn into
issued patents years later, don't exist these days because the relevant
agencies publish applications within 2 years after application. Yes, there's
an exception in US law, but it makes the invention unpatentable in other
jurisdictions.)

------
nnutter
If Theora gets sued over a patent that H.264 also violates wouldn't MPEG LA
want to back up Theora as to not give credibility to the patent? If they
didn't the suit against Theora would just strengthen the patent against H.264.
I guess, H.264 can counter-sue to protect themselves, maybe.

------
ZeroGravitas
He's posted an update saying Google only uses Theora because they already have
an H.264 licence, so they're safe.

2 counterpoints: 1) so does Apple yet they're not using Theora because of
alledged patent risk, 2) Google only provided Theora with the open source
Chromium. Under this theory, why can they ship Theora but not H.264?

I think we can conclude that he's just making this up as he goes along.

