Ignoring the cost in ignoring the revenue from millions of iOS users, let me focus instead of the looming legal question of WebM. If Google were to indemnify WebM users (sites who encode in WebM, developers who release decoders, OEMs who release hardware decoders), I would be much more willing to embrace WebM. As is, there is a very cogent argument to be made that the MPEG-LA group has already suggested that some of their patents may be encapsulated in WebM and users could be opening themselves up to lawsuits as co-defendants with Google. H.264 isn't free, but it's a known cost and licensing from MPEG-LA indemnifies you from any legal costs that might be associated with patent trolls popping up to sue you to death.
This point has already been discussed a lot, but I'll just review it quickly for you.
Basically, if you use any software at all, you can't go around living your life in constant fear of patent threats. WebM is probably safer than most because you have a big entity to fight most of your battle for you, presuming such a battle ever materializes.
Of course it's possible that MPEG-LA will be angry to see their H.264 revenue stream run consistently drier and sue in hopes of retaliation and a declaration that all WebM users must pay MPEG-LA royalties anyway. There's no guarantee that this will happen, however, and that MPEG-LA hasn't made an attempt to "nip this in the bud" demonstrates that they may not be all that certain they have a case here.
Google released WebM explicitly to circumvent the restrictions with H.264 so I suspect they did their due diligence and deviated from the H.264 patents in the necessary ways, but as above, there's nothing you can do if you irritate a group that has money and lawyers and wants to try their hand at milking something out of you. That's a general fact of life whether you use WebM or not.
If you're really worried about the FUD MPEG-LA puts out to scare you into paying protection money, then I guess you are free to pay that, if it makes you feel happier. But "Google shouldn't promote free standards because it might make someone angry and then they might sue you" is just not a very solid argument -- we can't refuse to do anything because someone might sue us. There will always be vultures out there, and we can't stop progress because of them.
"WebM is probably safer than most because you have a big entity to fight most of your battle for you, presuming such a battle ever materializes."
You’re making the kind of assumption that a rational business owner won’t make, which is that Google will suddenly jump in at the last minute and protect you. Thus far, Google is suspiciously refraining from indemnifying anyone using WebM. As a business owner, what motive do I have to give Google my trust and risk my entire business for them/their ideology of “openness” (whatever that means) if they’re not willing to give me the slightest shred of reason to trust them? It’s not like their track record is a shining example, either.
"Google released WebM explicitly to circumvent the restrictions with H.264"
That's their claim, yes. No independent patent entity has verified this that I know of, and MPEG LA have released statements that they are almost certain that WebM violates some of their patents. Also, Google has no stake in H.264, so they're at risk of being forced to forever pay hefty licensing fees to MPEG LA for Youtube (and other properties) if H.264 wins. It's entirely in Google's interest to kill H.264 or at least make WebM popular enough that they can use that to offer video to users, but just because it's in Google's interest doesn't mean it is in the interest of the web at large, or of Google's users and customers themselves. If you think they did this just for the "openness of the web" you're being either ridiculously naïve or a poor business person.
as a ridiculously naive and poor business person, I'd like to say that if webm becomes popular enough that google can serve it and avoid h264 (and paying royalties to MPEG-LA), I'd consider it a step toward my vision of a more open web (royalty-free codec widely available) and a good development for my business (royalty-free codec widely available).
no one is pretending that this will be all rainbows (the post directly acknowledges the current stalemate), so feel free to assume that those of us in favor of this development aren't idiots.
Why would Google do their due diligence and not share it? MPEG-LA has detailed very clearly where each patent claim applies to the H264 spec.
Google owes it to its users to go through the MPEG-LA document and do at least one sentence explaining why WebM doesn't infringe each point. It would be a month exercise for a dev and product manager, but well worth it.
It ccurs to me that there's one possible motive for Google doing what it's doing that isn't purely cynical -- it may want the MPEG-LA to sue it now and reach some kind of settlement than wait a few years and ambush it.
The problem with that is that MPEG-LA's licensors can sue more than once.
In fact if I was MPEG-LA I'd do exactly that. I'd work with my licensors to ensure not everyone sue at once, but rather do it all in succession. Literally have WebM in courts everyday for a decade. And remember, only one licensor need win, and they don't have to grant WebM RAND terms. They could just come right out and say, "take it off the market". And since there's no indemnification, they could in theory even go after end-users of phones, although not likely.
Of course the same can be done against H264, but it appears far less likely.
But a "flush out the enemy" strategy doesn't seem likely given the raw number of patents and licensors associated with H264.
Except it's not true: you pay MPEG-LA to license known patents under their ownership. They don't indemnify you from patent lawsuits stemming from patents they don't own.
The big difference is MPEG-LA has gone through extensive public effort to document and find patents applicable to H264. On2 may have done the same, but they did so behind closed doors if they did. So far Google hasn't let us know either.
So oddly you have a royalty-based codec where work has been in the public. And a royalty-free based codec where everything has been done behind closed doors. Oh the irony. :-)
I think you can be sure that Google tripple-checked everything before exposing themselves to lawsuits and spending on On2 more than lifetime royalties to MPEG-LA (at current rate).
Another thing is that VP8 is very similar to H.264 without stepping on known H.264 patents. If any unexpected patent surfaces, both Google and MPEG-LA licensees will be screwed (but not MPEG-LA, as they're not giving protection nor guaranteeing that their license covers all required patents).
I think you can be sure that Google tripple-checked everything
They may have. If so, just show me the paperwork. MPEG-LA has given them a great paper trail to work from. The fact that I've seen nothing from Google gives me nothing to go on.
One thing I've learned in business is if one person gives you a docket full of easy to follow evidence and another says, "trust me" -- I tend to go with the hard evidence. In both cases the proof won't be complete, but I can sleep at night knowing that I made an informed choice.
But that's just me. At the end of the day, each org will have to make its own choice. I think a WebM + H264 world is perfectly fine. Let the better codec shine.
> As is, there is a very cogent argument to be made that the MPEG-LA group has already suggested that some of their patents may be encapsulated in WebM
They've been saying the same about Vorbis for the last 10 years and yet never sued anyone. By the way, Vorbis is being used a lot by the billion dollar video games industry.
> H.264 isn't free, but it's a known cost and licensing from MPEG-LA
Actually no, MPEG-LA and its users have been sued many times by patent trolls, read up the wikipedia article. H.264 is no safer, the MPEG-LA is just good at spreading FUD.
They've been saying the same about Vorbis for the last 10 years and yet never sued anyone.
No one uses Vorbis across applications (ie as an interchange format) so it doesn't matter. Its peanuts.
By the way, Vorbis is being used a lot by the billion dollar video games industry.
Yes, but not as an interchange format, which is key. They know that if they ever sued us for using Vorbis we'd go back to any number of proprietary formats that we used before we started using Vorbis. We can do that on-the-fly because we don't use it as an interchange format - there's no legacy, no compatibility issues, nothing. We can just change and then there's no long-term licensing scenario for them. It isn't worth suing. Add to that the razor-thin margins across the games biz and the fact that most studios would just go bankrupt and close up shop if they were sued for this rather than pay-out and...why would they sue us again?
Actually no, MPEG-LA and its users have been sued many times by patent trolls, read up the wikipedia article. H.264 is no safer, the MPEG-LA is just good at spreading FUD.
Yes, probably. I'd like to say that the MPEG-LA with their h.264, having been around longer, is at least a safer, friendlier bunch of crooks. Sadly, not even licensing h.264 from the MPEG-LA will guarantee you'll stay out of court.
Recently I've become quite worried about using Linux for the same reason. Microsoft has suggested several times that some of their patents may be encapsulated in Linux and users could be opening themselves up to lawsuits. Now, they haven't mentioned the actual infringed upon patents or where Linux has done so, but they could at any moment.
More seriously, MPEG-LA indemnifies you from nothing. However, like the webM license, you lose all right to associated patents if you sue a licensee, so there is some protection there (in both cases).
Microsoft did the same thing with respect to SPF, asserting that they had patents filed for that had claims that SPF and related sender control technologies could have infringed upon but wouldn't assert exactly what those patents were or exactly what claims would be targeted. It severely retarded the marketing, uptake and discussion around email sender control, and was a huge distraction.
As it happens, MPEG-LA doesn't indemnify you from anything. They even say so on their website, though it's carefully hidden. But people would really like to believe their licensing fee paid for that sort of thing, so don't bother to check what the actual licensing terms are.
