[RTW] Known encumberances != exhaustive list of encumberances (was Gateways and does anyone think "H.264 for ever"?)

[David Singer]

On Jan 7, 2011, at 11:33 , Adam Roach wrote:

> On 1/7/11 12:23 PM, David Singer wrote:
>> Your list is a start, but it also needs to consider the availability of acceleration and hardware support (maybe that's part of your first bullet), and (alas) IPR risk.
> 
> You've brought up IPR risk a couple of times now, with the implication that a codec with known IPR entanglements is somehow safer than a codec without. This is a fallacy that we need to dispense with.

No, it's not quite that.  It's that a codec that has been through formal standardization (and hence visibility and obligations), has had a formal industry-wide call for patents, has a license or licenses, and is widely deployed, has a lower (agreed, non-zero) IPR risk than a codec that has not.  Those steps have done a lot to flush out patent claims into the open.

For example, participants to standards bodies that fail to disclose patents face risks if they later try to enforce those patents (recent court cases).  So, for at least that set of companies (who form a reasonable proportion of the corpus of patent-holding companies in the field), we have lowered the risk by placing them under a disclosure obligation, and by having formal calls for IPR issued (both by the standards body and by those proposing pools).

> This shouldn't be news to anyone with even a passing familiarity with the situation. As I'm certain you are aware, the MPEG-LA licensing pool agreement for H.264 explicitly calls out these potentially unknown patents as a risk, and warns licensees that dealing with any resultant problems is the licensees' problem, not MPEG-LAs.

Yes, this is true, because MPEG-LA is run by lawyers and lawyers always tell you that they aren't perfect (did we know that already?).

> In other words: it is every bit as likely that an entity will assert a previously unidentified, valid patent against H.264 as it is that a company will assert such a patent against Theora or VP8. Implications to the contrary are propaganda.


No, I'm sorry, the risk levels are substantially different, and any implications to the contrary is...well, propaganda.

Take a hypothetical case: Imagine someone were to define a subset of MPEG-1 or MPEG-2 video for which it believes all the relevant patents have either expired or are RF-licensable.  How much of a risk is there that some previously unknown patent would come up and snooker the situation?  Why would someone sit in their patent through decades of potentially lucrative licensing, and only pop onto the radar when something free is defined?  By leveraging the standards process, the pool process, and the wide temptation to collect money over decades, we could substantially lower the risk of a submarine.  (I can't say it's zero, as submarine captains operate to a different definition of 'rational' from me, it seems!)

Contrast that with someone who believes that they might have a patent on Theora.  While it's an open-source codec in development with limited deployment, where is the incentive (let alone requirement) to check? A statement that Theora needs a license would be unpopular (!), would take real time and effort to check (the analysis), and result in bad PR and no revenue, even if you win.  On the other hand, if you wait, and then someone who is both (a) rich and (b) you don't like or wish to fight back against, deploys it, you now have the incentive to check and go after it.  There are incentives to wait and see here, alas.

I believe that RF standards have their place, and I work hard to make them happen (e.g. I am Apple's AC Rep to the W3C and fully support their patent policy).  But we have to be realistic about what we pursue.

RF technologies will surely have a place in this project (many of the protocols seem to be in that category), and a complete RF 'profile' may well be achievable and meet some needs (for example, if you want to give away implementations and make your money some other way, you can't afford to pay per-copy on every give-away).  I just remain opposed to entering the project with the blinkers on that *only* RF technologies will be considered, because I think royalty-bearing ones may well have a place, and we should discuss the needs and trade-offs.


David Singer
Multimedia and Software Standards, Apple Inc.