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Re: Formal Objection to One vendor, One Veto

From: Silvia Pfeiffer <silviapfeiffer1@gmail.com>
Date: Wed, 15 Jul 2009 14:25:00 +1000
Message-ID: <2c0e02830907142125h33e22e45rda8bbe18dea8ecc7@mail.gmail.com>
To: Chris Wilson <cwilso@microsoft.com>
Cc: Shelley Powers <shelleyp@burningbird.net>, Lachlan Hunt <lachlan.hunt@lachy.id.au>, Sam Ruby <rubys@intertwingly.net>, "www-archive@w3.org" <www-archive@w3.org>, "Michael(tm) Smith" <mike@w3.org>, Dan Connolly <connolly@w3.org>, "public-html@w3.org WG" <public-html@w3.org>
Hi Chris,

It is good to see a current statement by Microsoft about HTML5 and the
video codec discussion.

On Wed, Jul 15, 2009 at 9:45 AM, Chris Wilson<cwilso@microsoft.com> wrote:
>
> The problem I see is that video is a patent-laden area, and there's been a for-pay industry initiative around H.264 et al; though I recognize why that is untenable for the open source community, for projects like Mozilla, and why some other vendors like Opera might just not want to pay the price, I would beg indulgence from others in understanding that just because On2 Technologies donated VP3 with an appropriate controversy does not mean that it is without risk or cost, particularly to a vendor with large revenues.  It's been stated[1] that MP3 or H.264 might also have vulnerabilities to unknown patents; though that is technically true, it is highly unlikely that a holder of such a patent would not have come out of the woodwork by now, given the obvious profitability of pressing such a patent (after all, Fovent made > $100m in two years before the JPEG patent was invalidated) and fairly unlikely that the MPEG-LA would not attempt to buy the rights.  I expect it's unlikely that such a patent pool protection would be set up for Theora, as vendors want to have to pay zero money to use it.


As far as I understand MPEG-LA's patent pool: it is a means to get a
license for the "patent thickets" surrounding MPEG standards and thus
a distribution scheme for royalties to companies that have a patent
claim in the MPEG standards. The Patent Pool is, however, in no way
shape or form providing any form of protection to its licensees wrt
new patent claims of companies that are not taking part in the "patent
thicket" (http://www.mpegla.com/aboutus.cfm).

In fact, there have previously been examples where licensees of the
MPEG-LA patent pool have been sued (individually) by patent holders,
in none of which MPEG-LA was even a part:

* the Jan 2008 Qualcomm's case against Broadcom alleging infringement
of two patents related to products that used the H.264
video-compression standard:
http://www.ims-expertservices.com/bulletin/jan/discovery-abuse.asp

* the June 2007 Alcatel-Lucent case against Microsoft allegedly
infringing on their patent technologies related to MP3 compression:
http://arstechnica.com/old/content/2007/02/8910.ars


I do not think that setting up a patent pool for Theora makes any sense at all:

first -  the only known patents that Theora makes use of are the ones
owned by On2 and On2 have already provided royalty-free licenses to
these; so, it would be a very lonesome pool

secondly - there are no royalties to distribute, which would make the
exercise pointless


I do think, however, that two things make sense:

first - the analysis of the patent space surrounding Theora and
publication of a document containing the outcomes of such an analysis,

secondly - the preparation of adoption of Theora as part of a
standard, and as part of that preparation there needs to be a call for
any patent holders to step forward within a given time frame. If such
a call was widely distributed and the distribution documented, a court
would be in a position to reject any later patent infringement claims
where the patent holder had obvious knowledge about the request to
step forward and have knowingly ignored that request.

> As always, I am not a lawyer, and this is not legal advice.

Neither am I - just thinking it through logically and making sure we
do not attribute power to bodies that do not have such.

Regards,
Silvia.
Received on Wednesday, 15 July 2009 04:26:05 GMT

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