First legal shots fired at Google's VP8 codec

First legal shots fired at Google's VP8 codec

Summary: Google wants to make its VP8 video codec a patent-free standard. The competition just threw down the first big challenge to that strategy. MPEG-LA, lhe group that manages the licensing of patents for the H.264 codec, is forming a patent pool for VP8. What does this mean?

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TOPICS: Legal, Google
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11-Feb-2011 Noon PST Updated to include response from MPEG LA (at end of post).

Update 2: Added Google statement

Google wants to make its VP8 video codec a patent-free standard. The competition just threw down the first big challenge to that strategy.

MPEG LA, the group that manages the licensing of patents for the H.264 codec, announced today that it is forming a patent pool and gathering claims from companies that believe they have patents essential to the VP8 codec:

MPEG LA, LLC, world leader in alternative one-stop patent licenses, announces a call for patents essential to the VP8 video codec specification used to deliver video images. The VP8 video codec is defined by the WebM Project at http://www.webmproject.org.

In order to participate in the creation of, and determine licensing terms for, a joint VP8 patent license, any party that believes it has patents that are essential to the VP8 video codec specification is invited to submit them for a determination of their essentiality by MPEG LA’s patent evaluators. At least one essential patent is necessary to participate in the process, and initial submissions should be made by March 18, 2011. Although only issued patents will be included in the license, in order to participate in the license development process, patent applications with claims that their owners believe are essential to the specification and likely to issue in a patent also may be submitted. Further information, along with terms and procedures governing patent submissions, can be found at http://www.mpegla.com/main/pid/vp8/default.aspx.

This development isn't a complete surprise. As I noted previously, Larry Horn, CEO of MPEG LA, has gone on record with suggestions that this day would arrive:

The license offered by MPEG LA charges a royalty for decoders wherever or however deployed. In addition, no one in the market should be under the misimpression that other codecs such as Theora are patent-free. Virtually all codecs are based on patented technology, and many of the essential patents may be the same as those that are essential to AVC/H.264. Therefore, users should be aware that a license and payment of applicable royalties is likely required to use these technologies developed by others, too.

Today's brief announcement raises many more questions than it answers. Have MPEG-LA and Google been in discussions about this issue? How strongly does Google believe in the strength of the patents it purchased that underlie the VP8 standard? (Remember, this technology wasn't developed in-house.)

More to the point: If a patent pool is successfully formed, will it license those patents for free? Patent expert Florian Mueller says that outcome is "unlikely" and says "Despite my dislike for software patents, if I had to bet money, I would bet it on MPEG LA, not on Google." I agree.

How long will this take to play out? Mueller notes that submissions of patents for inclusion in the pool aren't going to be posted in public, and forming the pool could take some time after the close of submissions, as the pool members agree on terms and revenue-sharing arrangements:

I don't know whether MPEG LA will publish the list of patents identified after technical evaluation of all submissions, or only after successful conclusion of commercial negotiations. The latter seems more likely to me. One way or the other, we may only be months away from seeing a list of patents found to read on WebM/VP8.

I have requests in to both MPEG-LA and Google for additional comments and will update when I hear back.

Update: An MPEG LA spokesperson responds to a few questions via e-mail:

Q: What's the role of MPEG LA in all this?

A: MPEG LA provides voluntary licenses of convenience to users enabling them to obtain coverage under the essential patents of many different patent holders as an alternative to negotiating separate licenses with each. As such, we provide a service bringing together many patent holders with many technology users so that technical innovations can be made widely available. MPEG LA takes the market as we find it. It is the marketplace of users that makes the decision what technologies they want, and where an alternative one-stop license would be of convenience to them to help reduce their uncertainty and risk in using a technology, MPEG LA makes an alternative license available.

Q: Does this indicate that MPEG-LA does not agree with Google’s assertion that it controls all patents associated with the VP8 video codec?

A: Yes, as we have said in the past, we believe VP8 uses many patents owned by different parties. To the extent VP8 includes technology owned by others, then a pool license which removes uncertainties regarding patent rights and royalties by making that technology widely available on the same terms to everyone would be beneficial to the market.

I also asked whether MPEG LA and Google have engaged in any direct talks. I didn't get a direct answer, just this fairly vague bit of boilerplate:

As to your second question, MPEG LA’s call for patents is open to anyone with essential VP8 patents including Google, if they should have any.

 If I had to guess, I would bet that means no.

Update 2: Google still hasn't responded to my e-mail request, but The Register just printed the text of a statement it received from a Google spokesperson:

"MPEG LA has alluded to a VP8 pool since WebM launched - this is nothing new," the statement reads. "The web succeeds with open, community-developed innovation, and the WebM Project brings the same principles to web video.

"The vast majority of the industry supports free and open development, and we’re in the process of forming a broad coalition of hardware and software companies who commit to not assert any IP claims against WebM. We are firmly committed to the project and establishing an open codec for HTML5 video.”

The statement notably does not include any promise of indemnification by Google against any patent claims that might be asserted by a third party - like the prospective members of the MPEG LA patent pool.

Topics: Legal, Google

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  • RE: First legal shots fired at Google's VP8 codec

    This is why MPEG-LA cannot be trusted as a standard. A web standard like HTML, CSS do not get involved in patent lawsuits.
    tatiGmail
    • RE: First legal shots fired at Google's VP8 codec

      @tatiGmail

      I am not sure what trusting the MPEG-LA has to do with this.

      It's far too early to tell, but if VP8 is, in fact, infringing it would seem more dangerous to "trust Google" for 'open' standards.

      While VP8 hasn't been found to infringe on any patents yet (most likely because they just started looking) sometimes it's better to go with the devil you know (H.264) than the devil you don't (VP8).
      Rich Miles
      • RE: First legal shots fired at Google's VP8 codec

        @Rich Miles well, H264 is full of patent lawsuits, we cannot make it a web standard then. Have you heard anybody getting sued for using HTML? CSS?
        tatiGmail
      • RE: First legal shots fired at Google's VP8 codec

        @tatiGmail H.264 is a patent portfolio you can license. It is "full of patents" not "patent lawsuits". Does the MPEG-LA sue people for using the technology covered by those patents? Yes. As Ed has documented on <b>several</b> occassions it is not cost prohibitive to license.<br><br>My guess is that you don't like software patents. I definitely think the system is broken, but I actually think patent portfolios like MPEG-LA are a pretty clever innovation given the current state of patents.<br><br>Google may have good intentions by releasing VP8 to the world, but Google may not own all of the technology in it. They might, but only further investigation will tell.
        Rich Miles
      • Rich Miles, good point

        [i]but Google may not own all of the technology in it.[/i]

        That is the issue with Google: sure they use open source software for everything they do, but nobody outside of Google gets to see it.

        Who knows what IP they may have in their search code, so you're right, without seeing VP8, nobody can be certain it isn't infringing, even if unintentionaly.
        AllKnowingAllSeeing
      • RE: First legal shots fired at Google's VP8 codec

        @AllKnowingAllSeeing

        What are talking about "without seeing VP8"? It's open source. You can download the source code.
        rlawler
    • RE: First legal shots fired at Google's VP8 codec

      @tatiGmail - Riiiiiiiiiiiiiiiiiiiiiiight. Because there are no patent suits involving SGML, HTML, XML, etc., right?

      As owners of patents potentially infringed by Google, the MPEG-LA are exercising their legal right, and imperitive, to protect their patents. If they did not, their patents could be declared null and void.

      Whether their claims will be upheld in court we'll have to wait and see, but the MPEG-LA is well within its rights to protect its patents.
      bitcrazed
      • RE: First legal shots fired at Google's VP8 codec

        @bitcrazed There is no legal imperative to enforce patents. You are perhaps confusing patents with another form of IP protection.
        rlawler
      • RE: First legal shots fired at Google's VP8 codec

        @rlawler Well, sort of. You can certainly never enforce your patent if you want. That's fine. But if you don't enforce it, you can't later change your mind.
        gwconnery@...
      • RE: First legal shots fired at Google's VP8 codec

        @rlawler - if a patent holder does not act to defend its patent in the light of blatant patent infringement, the patent may successfully be invalidated on appeal.
        bitcrazed
      • RE: First legal shots fired at Google's VP8 codec

        @bitcrazed

        Right, bitcrazed. If a patent holder doesn't defend it's patents, they can lose the right to enforce those patents in the future if they knew that someone was infringing and did nothing about it.

        Really, this shows why software patents are a BAD IDEA, and why they should be banned except for WHOLE PROGRAMS like Windows 7, KMPlayer, etc.
        Lerianis10
      • Let's be realistic here

        @bitcrazed The MPEG-LA patent holders are exercising their "right" because they stand to lose money if VP8 gains broad adoption.

        Most patents can be argued a hundred different ways to the point where "infringement" becomes a vague term. This is an attempt to cause a big legal mess, nothing more, nothing less. The patent holders are trying to find anything in their arsenal that they can to instill fear, uncertainty and doubt about for any company considering using VP8.
        K B
      • RE: First legal shots fired at Google's VP8 codec

        @bitcrazed

        "As owners of patents potentially infringed by Google, the MPEG-LA are exercising their legal right, and imperitive, to protect their patents. If they did not, their patents could be declared null and void."

        No. You are thinking of Trademarks. With a patent I can fire the first shot the day before it expires. But it makes economic sense to nail them a lot earlier.

        Go here for clarity.
        http://www.uspto.gov/
        http://www.answers.com/topic/trademark
        osreinstall
      • RE: First legal shots fired at Google's VP8 codec

        @bitcrazed MPEG-LA does not own any patents related to VP8 yet... That's why they're asking companies involved in MPEG-LA to begin submitting patents to the pool to challenge VP8. MPEG-LA is just a group of companies who got together to stifle video innovation, AKA a patent troll. MPEG-LA is detestable, and run by people who are outright horrible people. If everyone who works for MPEG-LA were to drop dead and go to hell today, I would celebrate.
        snoop0x7b
      • RE: First legal shots fired at Google's VP8 codec

        @bitcrazed
        How their calling (including Google) for a making a pool is related to exercising their legal rights? Do you mean to say that they have found out what all patent infringement of MPEG LA (H264) is done by VP8 and challenging it in a court? Then why this open invitation to everybody who finds out that any of their patents may be being infringed by VP8. I perceive it a strategic direct threat to content providers and companies who may switch to VP8 to to avoid license fee from MPEG LA. They are saying that we have started this exercise of determining patent infringements by VP8 and warning that once it is found out and established, you can't escape license fee anyway. So, better be with H 264 and MPEG LA since it already has an identified pool of patents and is clear about its licensing policy. Additionally, it is less likely that there can be any patent infringement lawsuit against it.
        Some wild speculations about it on the basis of their behavior, strategy and alliances. Make them ubiquitous and then later when content providers also form unions, lobbies and are able to put pressure with better negotiable standings, pass on the license fee share to the end users in the absence of any viable alternative.
        ashwinipn
    • RE: First legal shots fired at Google's VP8 codec

      @tatiGmail: We may think that we know what you mean, but MPEG-LA is not a "standard," nor even a standards body. They're sort of the Borg Collective of large, web-based technology patent holders. Yes, HTML 5 is a standard, but MPEG-LA has no direct influence over it (though many of its members certainly do). HTML, as a standard, is "owned" by W3C, not MPEG-LA. And the owners avoided naming any specific codecs (not to be confused with protocols and the like) in their specs and standards, specifically to steer well clear of this crap, and because there may be no truly open and free codecs to name. (That remains to be seen, which is what this is actually all about.)

      Now, we're certainly all allowed (and encouraged!) to hate and/or distrust MPEG-LA, but they don't own the standards, and the standards bodies are NOT involved in any lawsuits.
      ColinABQ
    • RE: First legal shots fired at Google's VP8 codec

      @tatiGmail No. This is what will happen when you trust Google and their "Open Open Open" mantra. It's BS. A technology does not become patent free by fiat. The courts will determine whether VP8 is patent encumbered, not Google.
      His_Shadow
    • RE: First legal shots fired at Google's VP8 codec

      @tatiGmail MPEG LA doesn't promise indemnification either, but Ed Bot smartly omits this.
      BioNerd
    • This move is a good thing...

      @tatiGmail
      The fact that MPEG-LA is challenging VP8 early is a good thing. If there are patent problems with VP8, you want to know as soon as possible. If they are unable to prove that VP8 violates their patents, this will be a HUGE boost to VP8 as an open standard. If they do find patent violations, Google will be able to address them. In the end, we should all hope that Google is able to create a standard we can all use which is free and clear for anyone to use without worrying about legal ramifications. This is just one necessary step in that process.
      BillDem
      • RE: First legal shots fired at Google's VP8 codec

        @BillDem They're not looking for google to "address" them. They're looking to collect a royalty from every browser maker... They're looking to wreak havoc on our ability to set standards without giving them money. They're selfish pricks.
        snoop0x7b