A patent pool is being assembled to go after Ogg Theora, Steve Jobs said in email; but why did he say it like that?
Over the years, my editors - and I in my turn - have told writers that the passive voice is to be avoided. The active voice is more engaging, takes fewer words - and expresses things more clearly. By using the passive voice, Jobs may just be speaking in the way that comes naturally to him, but it is also a prime example of the FUD that Ed Bott on our sister site ZDNet US has been talking about from the folk from Xiph.org behind the Ogg codec, and from MPEG LA, the organisation that holds the H.264 patent pool. It tells you that something is being done by someone that you need to feel fearful, uncertain and doubtful about - but doesn't tell you anything important, like who is assembling this retaliatory patent pool, how do they plan to proceed and how does Apple know about it?
Is it Apple itself, from its QuickTime patents? Microsoft who contributes 65 patents to the patent pool held by MPEG LA? Before you pick that as a financial advantage, note Dean Hachamovitch of the IE team explaining that this means it only has to spend twice as much on licencing H.264 codecs for Windows on new PCs as it makes from the patents it's contributed? It's also unlikely given that, for example, Microsoft supports the development of VLC, which plays Ogg Theora - unlike Apple's desire to wall in what can run on the iPhone, Microsoft's wider interest is in having Windows be a broad platform that supports as many codecs as possible.
MPEG LA itself? That's actually the only answer that makes sense because this is the group set up to handle licencing and management of the pool of patents that make up H.264. They're the only organisation that could try to police infringement but by not naming them Jobs avoids answering the same question about Apple's own involvement that Microsoft has faced over this - the company contributes one patent to the MPEG LA patent pool itself. Any advantage Apple gets from that patent is likely to be even more minimal than Microsoft's 50% discount and it's more likely that Apple has picked H.264 for the same reasons the IE 9 team has - it's a good codec and there's broad support for hardware acceleration that gives you better performance and longer battery life using H.264 than other codecs. By using the passive voice, Jobs can wave vaguely at a nebulous someone behind an alleged patent pool instead of getting into whether hardware-accelerated Flash will have better performance and reliability and bringing the whole video and iPhone development question back to the issue of control.
(It's a mistake to say that Flash and Silverlight are just about video, by the by; this whole argument could be repeated over libraries and interfaces and hardware access to devices like accelerometers and compasses - and probably will be - but video certainly has a revenue stream.)
There's a lot of linguistic laziness (or possibly linguistic agility) in many of these positionings and posturings over video and IP. Apple, like Humpty Dumpty, has its own definition of what open means (exactly what I want it to, said Humpty to Alice). Discussing Ogg and Flash, the Free Software Foundation defines free to mean only free as in speech without ever stating that explicitly - the free as in beer IE 9 and Windows Media Player won't count because Microsoft pays and charges royalties on H.264. There's a notion that commercial software development is somehow intrinsically, philosophically bad and wrong because it's not Free Open Source Software, regardless of how many people are happy to pay for it or how open the standard it implements (because, the argument goes, no standard with a patent in is actually 'open'). Open source can certainly be a successful business model, but I don't think it's helpful to suggest that it's the only acceptable one.
The Ogg folk also maintain confidently that their code is unencumbered by patents and won't be affected by any patent pool.
Having worked in a research lab, Simon's first comment was that the Xiph.org team are the last people who could have any idea about whether any patents do apply to H.264. It's now an industry standard practice not to allow researchers to look at any patents at all - because if you do infringe on a patent that you can be proved to have read then it's assumed that you knowingly infringed on it and the court is going to assess punitive damages. (Something like the crime being worse if you know what you're receiving is stolen goods…) So either Xiph.org have checked out the competition and laid themselves open to wilful infringement charges, or they've done what commercial research labs do and employed a patent librarian or independent researcher to tell them if they're doing something news - or they're following good development practice by not looking at patents and their belief that they're doing something novel is no better than anyone else's opinion. Or they're assuming that the On2 patent indemnity covers all of the Ogg Theora code, even what was developed long after the initial code donation by On2 that Ogg is based on, which covers the data stream but not the process of encoding or decoding it - and it seems brave to assume that all of that is equally unencumbered.
For Apple, the question of video codecs in the browser is largely about control; Apple wants a codec that's good enough and popular enough that it can continue to refuse to put Flash on iPhone and iPad - keeping the ITunes store as the gatekeeper for getting code onto the device. The Ogg team would like more support for the Ogg codec, and they're pushing what seems to me like a somewhat naïve anti-patent stance. Microsoft is repeating its same markup mantra from PDC and MIX; if there's only one video codec in the browser that's also supported in other browser, developers can use that rather than needing a different encoding for different browsers. Like Apple , Microsoft wants a good, well-supported codec that's hardware accelerated; if there's a chance that someone is going after Ogg in court, it just doesn't make sense for Microsoft to do the work of building it into the video tag or asking developers to use. Whatever else you think of it, Microsoft is a remarkably pragmatic company.