Lead OGG Dev Responds to Jobs' Jabs

Image via CrunchBase

Xiph's Gregory Maxwell, the designer and lead dev of the OGG container and the Vorbis audio and Theora video codecs, had a few choice words for Steve Jobs over his recent suggestion that OGG Theora would soon be in court over patent infringement. What did Steve say, exactly?

 "All video codecs are covered by patents. A patent pool is being assembled to go after Theora and other “open source” codecs now. Unfortunately, just because something is open source, it doesn’t mean or guarantee that it doesn’t infringe on others patents. An open standard is different from being royalty free or open source. 

Sent from my iPad"

Sigh. You've got to love Apple's self promotion. Gregory had this response on the Theora mailing list:

It would seem both surprising and remarkably underhanded, even considering the probable involved parties, to undertake constructing a patent pool for some product without ever consulting the vendor of that product: Surely no good faith effort to construct a valid and usable patent pool for a codec could be undertaken without contacting the developers of the codec.

In particular— according to the US Department of Justice "A licensing scheme premised on invalid or expired intellectual property rights will not withstand antitrust scrutiny." So, even though it is apparent that the Xiph.org or its participants would have no interest in receiving royalties from such a pool a failure to contact the developers in an effort to determine the validity of any potential patent claim would be unconscionable.

Since the developers of Theora have received no such contact, I can only conclude that no such effort is being undertaken and that the quoted statement is either a forgery, the result of a misunderstanding, or that the statement may be indicative of a dishonest and anti-competitive collusion by Apple and other H.264 patent holders to interfere which the development, promotion, and utilization of unencumbered media standards.

If you've read Gregory's dissertation response to accusations that OGG is a technically inferior container format, you'll know that he is both eloquent and confident. He goes on to say in another e-mail from the list:

The specific standards process used to develop the MPEG codecs creates patent minefields that royalty-free codecs don't generally face. Because many knowledgeable people have heard of the problems faced by these patent-soup standards, they may extrapolate these risk to codecs developed under a different process where these problems are less considerable. This is a mistake, and I'll explain why here. 

Recently there have been a number of prominent statements along the lines of "all video codecs are covered by patents" and "virtually all codecs are based on patented technology". 

These statements are carefully engineered FUD spread by the license holders of competing formats in order to discourage the use of unencumbered alternatives. They are careful to avoid naming WHO owns these supposed patents or WHAT is actually patented, because such specific statements would allow the victims of this FUD to petition a court for a declaratory judgment of non-infringement.

This FUD is particularly effective because there _is_ a widespread misconception that media codecs are a patent minefield to a greater extent than other areas of software. 

Certainly this is the case for the MPEG codecs, but it is not a universal truth. To understand why, you must understand a little about the process used to build these international standards. 

The reason the MPEG formats are so thoroughly encumbered by patents is that the process used to build the formats is designed to be "blind" to patent considerations: all the participants have agreed that any patents they hold will be licensed under "Reasonable And Non-Discriminatory" terms, a term of art which few normal people would actually describe as all that reasonable or all that non-discriminatory, as RAND often means "quite expensive". With only that assurance in hand, they go about constructing their formats through an extensively political tournament process where proposals are made and encouraged to be combined. 

So no effort is made to avoid patents, but it gets worse: 

If you're a participant in this process, it is very important that some of your patented technology make it into the result: if it doesn't you'll end up having to pay the same royalties as the rest of the world, but if it does you can cross-license your patents with the other "winners" and completely avoid paying to use the resulting format. 

So even if you're not looking to make a profit from your participation, you'll be sure to get some patents into the result so that you don't have to _pay_ for the result of your own labors. 

As a result these formats end up rife with inconsequential or even detrimental patented techniques which could have _easily_ been avoided, as essential elements. 

—— and this is the outcome when all of the parties are playing by the rules. For an in-depth analysis of the mess that patents are making of standardization, see: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1134000 

It doesn't have to be this way. Most media coding patents are exceptionally narrow, as it's much cheaper and easier to obtain a very narrow patent. The fact that a patent can be trivially avoided— often by something as simple as changing the order of a process— isn't a problem for patents designed to read on standards, since the standard mandates doing it "just so". 

By starting out with the premise that you want things to be royalty-free and not merely RAND, you remove the incentive structure that encourages the creation of minefields. By being cognizant of the risk and sticking close to the known safe prior art, rather than the willful patent entanglement of the MPEG process, the risk of surprise claims by third parties is also reduced. 

The problem of patents isn't eliminated— they are still a costly burden on the developer of any standard, but the environment surrounding the MPEG patents is simply not a good indication of the real difficulty. 

The process used by MPEG is ultimately counterproductive. By being "blind", what they are actually doing is encouraging a kind of patent cold war. At the end, even the inventors and fully paid-up licensees of those formats end up in court—fallout from playing with these dangerous toys. This can only be avoided by rejecting the taint of encumbered technology, and accepting the challenges and compromises that come from doing so. Or, in other words, the only way to win is not to play.

Well, we certainly know where he stands on this matter. I hope he is correct, but I've got little faith in the patent system and even less in east Texas, where this fight will almost certainly be fought.