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

[Adam Roach]

On 1/7/11 1:53 PM, David Singer wrote:
> 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.

I don't agree with the assessment of "lower IPR risk" (because of 
mitigating factors I discuss below), but the rest of your assertions are 
true of any technology, not just codecs. And yet we still favor 
unencumbered technologies.

Why? Well, in part because we need to balance these factors against the 
risk that holders of known patents may behave poorly; cf. 
http://www.intomobile.com/2010/11/10/motorola-microsoft-su/

This demonstrates how known encumberances are predictable places that 
things can and do go wrong. If you're worried about tigers, It seems far 
more sensible to pitch your tent where people have been actively looking 
for (and not finding) tigers for over a decade than it is to pitch it in 
a tiger-laden jungle where some of the tigers happen to be on leashes. A 
blind hope that the leashes are strong and short enough is a bit naïve, 
especially when tiger maulings are regularly reported in the news 
(Microsoft v. Motorola, above; Lucent v. Gateway; Multimedia Patent 
Trust v. Microsoft; etc.)


> 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?

Like Unisys and the GIF format? Or the Network-1 PoE lawsuits? Or 
Net2Phone sitting on their VoIP patents until 2006, despite competing 
commercially profitable services as early as 2000? I don't know. 
Motivation for this kind of behavior eludes me. But regardless of 
whether we understand the motivation, the behavior doesn't go away.

> 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.

Google, which has embedded both Theora and VP8 in Chrome, has a $198B 
market cap and $23B of annual revenue.  How large is a company before 
you consider it to have deep enough pockets to bother raiding? I mean, 
if we're talking about software companies, there are only three or so 
that can be legitimately considered "larger" by any financial metric.

> 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).

I know, and I've read several of your posts on the topic of HTML5 and 
video codecs. You were a neutral voice of reason in those discussions. 
So perhaps you can understand that I'm a bit confused by your seemingly 
partisan intimation about IPR risk (quoted above), and your propagation 
of the MPEG-LA's unsubstantiated allegations of VP8 patent infringement 
(in your email on December 21st). I prefer the "neutral voice of reason" 
Dave Singer.

>    But we have to be realistic about what we pursue.

How is considering VP8 and/or Theora as a baseline unrealistic? I'm not 
saying either should be a foregone conclusion; I'd like to see a 
well-reasoned discussion around codec selection. But I don't think 
characterizing RF technologies as inherently having excessive IPR risk 
falls into the category of "well-reasoned," even if certain licensing 
entities have engaged in self-serving saber rattling on the topic.


> 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.

I'm not proposing a change to standard operating procedure within the 
IETF (RFC3979):

    In general, IETF working groups prefer technologies with no known IPR
    claims or, for technologies with claims against them, an offer of
    royalty-free licensing.  But IETF working groups have the discretion
    to adopt technology with a commitment of fair and non-discriminatory
    terms, or even with no licensing commitment, if they feel that this
    technology is superior enough to alternatives with fewer IPR claims
    or free licensing to outweigh the potential cost of the licenses.


But your implication that we should penalize a technology *because* it 
is not known to be encumbered is exactly the opposite of this. If you'd 
like to reverse the IETF's position, I suggest you take the discussion 
to a broader forum, like ietf at ietf.org. I suspect support for your 
proposal will be limited.

To be crystal clear: I'm not proposing excluding royalty-bearing codecs 
from consideration. We need to evaluate each codec on its inherent 
benefits and drawbacks. What I'm objecting to is throwing unrelated 
ballast onto the scale when we're trying to make a reasonable comparison.

/a