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RE: Formal Objection to One vendor, One Veto

From: Chris Wilson <cwilso@microsoft.com>
Date: Thu, 16 Jul 2009 15:45:34 +0000
To: Silvia Pfeiffer <silviapfeiffer1@gmail.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>
Message-ID: <61027177C88032458A7862054B3C625803E35166@TK5EX14MBXW651.wingroup.windeploy.ntdev.microsoft.com>
Silvia Pfeiffer [mailto:silviapfeiffer1@gmail.com] wrote:
On Thu, Jul 16, 2009 at 9:19 AM, Chris Wilson<cwilso@microsoft.com> wrote:
>>...I think the reason why I mentioned that is that based on others'
>>feedback, I expect there WOULD be a suit similar to the Alcatel-Lucent
>>one, and you'll note who was sued in that one.
>Google, Apple, and even Mozilla can also be targets of such lawsuits -
>and Google & Mozilla have already made the step to support Ogg Theora.

As usual, IANAL TINLA.  Get your own lawyer.  I'm just trying to explain where my chain of reasoning comes from.

Mozilla's behind the 8-ball on video codecs - they cannot implement H.264 (or anything else that requires patent licensing) anyway, other than passing it through to the underlying OS and hoping there's a player for it (e.g. Media Player on Windows and Quicktime on OS X).  They have to hope that Theora has no IP infringement.

However, the critical point here is that patent holders go after the money - and the money is traced back through the chain of what an infringer is making off use of the patent.  Although Google has large revenues, you cannot trace the bulk of their revenues back to usage of the Chrome browser; so they're less attractive.  On the other hand, Microsoft has very large revenues, and a large portion of that comes from Windows, and IE is part of Windows; that's why the original award in the EOLAS lawsuit was such a large number, because it was essentially a portion of Windows revenue.  Obviously, Apple (given their inclusion of the browser into their flagship product operating system) would be another prime target.

>Presumably did their homework on the patent front to determine the
>risk. Unfortunately, it is not common for companies to publish such
>information, but instead everyone has to do their homework themselves
>and make their own informed decision. I still hope such a patent
>research could be done by W3C though.

Everyone has different motivations and culpability.  And those who are not in the first tier of financial targets can afford to be less concerned, I imagine.  :)

>... or the encoders could get adapted to work around such a patent (if
>it really existed). Since it's all built on open source, a rollout of
>such fixes would be relatively painless.

Possibly (could work around) - wouldn't know until the (hypothetical) patents were analyzed.  But the supposition of open source solving the rollout problem isn't true; open source vs. closed source is irrelevant to the rollout problem, it's only relevant to finding an algorithmic solution.

>> I'm not sure you could do that exhaustive a patent search, but okay.
>I agree - it's probably impossible to do that completely exhaustively.
>But the point here is not to be complete in everything that is
>possible in the patent space, but the issue is to reduce the risk (and
>the perceived risk).

I don't know if it's going to be possible to reduce the risk enough to make adding a codec with lower quality than what's already implemented there attractive, given where that risk bar is today.

>>>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
>> I don't know if that would have any legal standing.  (I'm not saying it wouldn't - I'm saying I'll well out of my depth and cannot respond.)
>IIUC, the knowledge about the standards were a large part of what
>helped in the two cases that I cited in previous emails on this thread
>to be thrown out of court. So, I would think that such an approach
>would help courts dismiss submarine patent claims. But IANAL.

In the Alcatel-Lucent case, I thought it was just that the court decided the technique was not infringing, and in the other, a standards effort was participated in "in bad faith" or something?  I guess my point was that I'm not aware if you can do a "patent roll call" - I've never heard of that before.

>> Perhaps the best answer would be to mandate that any conformant UA has
>>to support either Ogg/Theora OR MP4/H.264.  At least that would mean
>>only two encodings would be necessary to get interoperability.
>For compatibility reasons, it would be preferable to have a single
>baseline codec, but what you are suggesting may indeed become the
>de-facto standard, just looking at the way things are going. Two
>codecs is not the end of the world though, just extra effort for


Received on Thursday, 16 July 2009 15:46:31 UTC

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