|
Hi,
I agree with the basic sentiment of Philip’s email. However, in the (perhaps forlorn) hope to shed some light into the IPR situation, allow me to correct inline below some aspects of it that were painted in an overly broad brush. I hope my characterization
is reasonably impartial. All aspects below were discussed on the rtcweb list ad nauseam, and in much greater detail.
Stephan
StW: A commercial vendor with an obtained pool license and current on your reports and your bill has a license and insofar there is virtually no litigation risk from the 30 pool members. I write “virtually no risk”, because fraudulent lawsuits are not
exactly unheard of, and there is nothing one can do about those. The cost is $0.00 or $0.20 or $0.10 per codec, depending on volume. According to Cisco, even without a license of your own, the cost can be $0 if your product implements the download mechanism
they offer. Note that the definition of “codec” in the MPEG-LA agreements is hardware centric and difficult to interpret in a software environment. So there is cost (although potentially not for you).
Even with an MPEG-LA license, there also is litigation risk from those rightholders who are not pool members, which is a not insignificant percentage. However, the monetary damages that can reasonably be expected from licensing or litigation are, according
to recent rulings, some of which are under appeal right now, quite low. This is because H.264 and its patents were developed by a very broad community which agreed to license under RAND terms. As there is not so much money to be made, the chance that a rightholder
would litigate outside of a strategic context (smartphone wars, pool enforcement) is perhaps not overly high. Of course, that is of little consequence once the multimillion $$$ bill from your lawyer rolls in. H.264 essential patents have been litigated at
least 4 times since 2003, sometimes as pool enforcement actions, and sometimes in the context of smartphone wars. There are some 1200 licensees of the H.264 pool, including mega companies and little guys one has never heard of.
In terms of patentable technologies, VP8 is considered by many (including myself) mostly a subset of H.264. (It contains a few additional features over H.264 but allow me to ignore those here.) Insofar, one can expect that a subset of the H.264 essential
patents may also ready on VP8, in addition to a few VP8 specific patents. As far as licensing goes, Google has agreed to compensate 11 rightholders (that also happen to be H.264 rightholders) an undisclosed amount, and obtained a license from them which they
generously make available to us, along with a license under their own patents, and subject to certain conditions which most people consider bearable. So I think it’s safe to assume that these rightholders and google are not going to litigate over VP8. As
VP8 was not developed in an organization under RAND IPR policy terms, there is no RAND safety net. Anyone other but the 12 companies above could theoretically sue over a VP8 patent and demand sun/moon/stars and/or injunctive relief. Nokia has announced that
they are not willing to license patents they believe read on VP8, see here: https://datatracker.ietf.org/ipr/2035/. Nokia has also asserted allegedly VP8 essential patents against HTC in (at least) two distinct lawsuits in Germany and one ITC complaint.
One of the lawsuits is dismissed and under appeal and the second is stayed pending an invalidation procedure (something the German courts do only if they consider it likely that the patent is invalid as granted). AFAIK, the ITC complaint is still in the
procedural warm-up phase. My personal take on these lawsuits is that they have to be seen in the greater context of the smartphone patent wars. I may be wrong. However, if I’m right, then there will probably be a settlement in the not too distant future,
with terms unpublished, the lawsuits go away, and we would all be none the wiser. /StW
StW: Yes, it is different. H.264 implementations have been available in open source form, since at least 2006. They have been part of major Linux distributions forever. I’m following the litigation environment related to video codecs quite closely,
and I have not heard of a single lawsuit against an open source developer or distributor regarding video codecs, including H.264. All that is also true for VP8, except that VP8 is newer. /StW
StW: I don’t think that such a letter is needed. IETF RFCs, or parts thereof, are regularly ignored by the implementer community, sometimes to the detriment and sometimes to the benefit of the Internet at large. There’s no standard’s police that could
enforce compliant implementations. /StW
|