The FUD attack launched against Ogg Theora and VP8, the very idea that they violate patents, is not aimed at the courts, but at the W3C, which held a conference on the coming HTML5 standards last week in Raleigh.
While audio and video files are currently handled through object tags, HTML5 will support standard audio and video tags, support for which will be defined in the browser.
Microsoft and Apple are carrying the water of the content industries, which fear that losing control of the technology under which content is displayed results in losing control of the content itself. That control is expressed through the MPEG LA licensing body.
The $5 million license fee for the H.264 codec required by MPEG LA acts as a barrier to entry, both a financial and moral one. A licensee that doesn't follow Hollywood's rules could have its license pulled, and thus its product.
The money is chump change for Microsoft, and the barrier a good thing. It's a matter of principle for open source.
HTML5 is where that principle is being contested. The W3C policy is not to accept a royalty-bearing, proprietary technology into the Web standard. That's why video has, until now, been a function separate from the browser.
The attack came now because Mozilla, makers of Firefox, only wants to support truly open codecs under HTML5. Google's move to open source of VP8 is also said to be preparatory to making it the default codec in Chrome.
If open source becomes the default for HTML5 in Chrome and Firefox (and Opera too) Hollywood loses its technical control. Thus the dark claim by Jobs that a " patent pool is being assembled to go after Theora and other 'open source' codecs now."
The case is a nonsense.
If Ogg Theora were subject to patent, why would those patent holders allow nearly 160 million downloads (at last count) of the VLC Player, which contains it. Then there's the question of whether any software patent is valid -- we're still waiting on a Supreme Court decision in Bilski vs. Kappos to settle that question.
Apple and Microsoft have made their money on video by doing what the video owners want. They want to control the Web's video technology. So Microsoft will only support H.264, Apple darkly mutters about patent suits, and the W3C is supposed to knuckle under, making a proprietary technology part of the Web standard.
If pressed, I have no doubt that a suit would be filed. But even the filing of a suit does not always represent a desire to go to court, only a willingness to do so as part of a larger negotiation.
The suit would magically disappear if H.264 became the Web standard for video, and everyone who wanted to watch a video online were forced to have their software license that codec from MPEG LA.
That's the issue squarely facing the W3C now.