Ogg, MPEG LA, and Submarine Patents

A few weeks ago, we published an interview with MPEG LA CEO Larry Horn on the patent group's decision not to charge for free content encoded with H.264.

Then I got a note back from a reader who stated:

I'm disappointed. The interview seemed to be pretty powder puff. Why not ask the harder questions, e.g., was your decision in response to Wikipedia's (and potentially Firefox's) decision to support an open source format (Ogg Theora)? Your interview should take the real issues head on.

I checked to make sure the letter wasn't from my high school journalism teacher (it wasn't) and then reflected. At the time, I wasn't hip to the whole Ogg vs. H.264 debate within the parameters of HTML 5, and simply didn't think to ask. But then I read up on the debate, learning that Apple in particular, who is on the MPEG LA committee, has repeatedly stated that they won't adopt Ogg because of the risk of submarine patents. See, for example, Ryan Paul's excellent article in Ars Technica on the subject.

So I created a new set of questions and sent them to MPEG LA. This led to another round of questions, which I then sent to Xiph.org, which oversees the Theora format. I then got a very interesting response from Xiph founder Monty Montgomery.

We'll surely be covering this topic more in the future, but for now, it makes sense to simply share the (relatively unedited) responses from MPEG LA's Horn and Xiph's Montgomery, to give you a better sense of each organization's positions.

Q&A With MPEG LA's Larry Horn

Ozer: Did the patent group consider factors like HTML5 when extending the free pricing model?

Horn: No, it was not a factor.

Ozer: Has any thought been given to making decode free permanently to avoid these issues?

Horn: That is up to those who own the patent rights for the applicable technology. 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. MPEG LA would consider offering on additional licenses that would make these rights conveniently available to the market under a single license as an alternative to negotiating separate licenses with individual patent holders.

MPEG LA Follow-up
The comment "In addition, no one in the market should be under the misimpression that other codecs such as Theora are patent-free. In fact, they are not" got my attention, so I sent MPEG LA another round of questions.

Ozer: It sounds like you are saying that some of your patent holders own patents that are used in Ogg. Is that correct?

Horn: We believe that there are patent holders who do.

Ozer: It sounds like you’ll be coming out and basically saying that to use Ogg, you need to license it from MPEG LA. Is that correct?

Horn: That is not what we said. We said no one in the market should be under the misimpression that other codecs such as Theora are patent-free. Whether MPEG LA would offer a license for such rights is a different matter and has not been determined. If the market would find convenience in a single license to address these intellectual property needs, then MPEG LA would be interested in providing one as it has for other codecs.

Ozer: I think I know the answer, but have to ask. Some folks will assert that free H.264 decode is a lame effort to promote H.264 as the de facto codec for HTML 5. What's your response?

Horn: MPEG LA does not promote or advocate use of particular technology standards. That is a decision to be made by each user. Our business is to offer licenses for the technologies they choose as a convenience to them. As such, MPEG LA currently offers licenses for MPEG-2, MPEG-4 Visual, AVC/H.264, VC-1, MPEG-2 Systems, 1394, and ATSC, and we are interested in offering others that would provide similar convenience. To the extent other codecs use patented technologies and they are currently used without license, such new license offerings may be beneficial.

Q&A With Xiph's Monty Montgomery
I sent MPEG LA's answers on to Xiph's attorney for comment, who sent them along to Xiph's Monty Montgomery.

Ozer: Has any thought been given to making decode free permanently to avoid these issues?

Montgomery: I understand the point of your question. I'm compelled to add (as you're probably aware) that we don't consider it a good thing that participants in the web are consumers only. We want to see the mom and pop video bloggers, students, buskers, and everyone else allowed to participate without being forced into monopoly pricing. Decode royalties matter to the big web vendors, but encode and streaming royalties matter to absolutely everyone else.

Ozer: What about this statement from MPEG LA? "In addition, no one in the market should be under the misimpression that other codecs such as Theora are patent-free."

Montgomery: For 15 years, Xiph.Org has carefully "played by the rules," fully within the bounds, intent, and letter of intellectual property and patent law. For the past ten years we've informed the entire world, including MPEG LA, of our specifications and algorithms in detail. We've requested in open letters that any group believing we are infringing to inform us so that we make take immediate corrective action.

I predict that MPEG LA may counter that they know groups have been pressured into licensing patents in order to use Theora. This has been a recent back-room assertion. You might want to ask point blank if MPEG LA itself or any of its constituent members has engaged in this practice, thus manufacturing the evidence that "vindicates" their patent allegations. I beg you—tell me immediately if you get a straight answer (or good video of any squirming)!

I'm sure you can tell I'm a bit peeved; this has been going on for over a decade. It's amazing they've never been called out on it.

Ozer: And this statement from MPEG LA? "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. "

Montgomery: Non-logic; i.e., "I'm not saying Mr. Strawman is a pedophile. I simply remind you he's regularly seen in the company of children." MPEG LA has had more than ten years to say anything substantial on this front. They have not.

Ozer: And another MPEG LA statement: "Therefore, users should be aware that a license and payment of applicable royalties are likely required to use these technologies developed by others, too. MPEG LA is currently working on additional licenses that would make these rights conveniently available to the market under a single license as an alternative to negotiating separate licenses with individual patent holders."

Montgomery: I will point out that MPEG LA's own licensing terms disclaim that it is a complete license to use MPEG technology, and neither grants a license nor guarantees protection against patents outside of the patent pool MPEG LA controls.

Ozer: I think I know the answer, but have to ask. Some folks will assert that free H.264 decode is a lame effort to promote H.264 as the defacto codec for HTML 5. What’s your response?

Montgomery: Threats with no supporting evidence have garnered industry-wide press coverage for a decade; why would MPEG LA say more? You've got brass balls to push again for answers on these points.

(For the record, "Ogg" is not based on On2 tech. Theora, the lossy video codec within the larger Ogg system [the piece equivalent to H.264] was originally built from On2's VP3 codec. On2 granted us IP rights to VP3 at that time. None of the original On2 code survives, but the Theora format specification remains a superset of the original VP3. Our other codecs and the Ogg container itself were developed in-house and have no relation to On2 or MPEG. There was nothing misleading in what you wrote, but I hope the FYI is useful. I apologize if I'm telling you things you already know in detail.)

Summary
OK, I'm back. That's all we know. I sent Montgomery's responses back to MPEG LA, who responded with a "no comment."

From what I've seen of the next generation of Ogg Theora, it has a chance to be the first to seriously threaten H.264, at which point the submarine patents will either surface, or they won't. Of course, there are lots of other factors that will play out over the next few months: How Flash Player 10.1 fares once released; whether Apple ports Flash to the iPad or lets Adobe access the graphics hardware for H.264 playback acceleration on the Mac: whether Microsoft decides to get off the fence and join the HTML5 revolution.

Adding to the open source codec noise is the uncertainty surrounding what Google will do with the VP7/VP8 codecs. If open sourced, it will raise a whole new series of questions.

Finally, thanks to James J. Sowers from SpinCycle.org, for sending that email that started it all. Hey James—you oughta teach journalism!