Re: [codec] Royalty Free codec standards -- don't settle for less

[Stephan Wenger <[e-mail]>]

Hi Eric,


On 11/12/09 5:44 AM, "Eric Burger" <[e-mail]> wrote:

> Am I missing something here?  I cannot tell if what you are saying is
> the JVC EG was able to produce a RF baseline (the last paragraph) or
> they were not able to produce a RF baseline (the second to last
> paragraph)?

FWIW, I was one of the "architects" of JVT's royalty-free baseline approach,
and I believe I have some limited insight in the realities today.  My
position in our discussion is in part a reaction to these realities.

The short answer to this question is (as usual): it depends whom you ask.
However, clearly, most lawyers would probably advise a business to practice
H.264 baseline only after having obtained a license from the pool and
possibly other known rightholders.

At present, one can pick a (royalty-bearing, though cheap, comparatively
speaking) license from the MPEG-LA patent pool which contains patent claims
allegedly relevant to practice baseline and/or many other profiles.  MPEG-LA
does not distinguish between profiles on the out-licensing side; which is a
wise business decision on their side, I believe. Further, there are
rightholders outside the pool (according to ITU/ISO/IEC declarations on file
in the respective organizations), who may or may not charge for a license of
their patents related to baseline (or other profiles).  No one really knows
for sure.  

OTOH, some say that the assurances every contribution had to be accompanied
with (RF licensing in case the contribution were accepted, under a
reciprocity condition) continues to provide an essentially RF licensing
environment for baseline.  Note that the requirement for these assurances
were implemented in JVT only; they are not a rack ITU or ISO/IEC policy.
I'm personally aware of only a single ruling related to alleged infringement
of H.264 baseline (although H.264 patents have been litigated more than
once), and this ruling was quite positive for the alleged infringer;
however, the legal grounds for the ruling had AFAIK little or nothing to do
with the assurances mentioned above, but only with other process violations
and (more importantly) legal grounds to subtle to discuss here.  It should
further be noticed, that many folks in the community consider the ruling
"bad law".

Finally, the JVT Royalty-free baseline project did explicitly NOT target
anything but royalty-free *licensing*.  As it has been pointed out already,
by the strictest interpretation of the GPL and other similarly restrictive
"free" or open source licenses, the mere fact that one has to obtain a
license already renders a technology "incompatible" with the license.
That's why I have pointed out time and time again that you guys need to
shoot for non-assert covenants from known rightholders rather than RF
licensing provisions.  That said, there are tons of open source projects
(under GPL and other licenses) that implement H.264 and similarly
known-as-encumbered standards.

> One thing that is clearly different is IPR declaration in the IETF is
> not optional: it is mandatory and the policy is clear.

In the ITU as well.  Arguably: clearer than in the IETF.

> Moreover,  
> there is established case law that if a participant neglects to
> declare their IPR, and the IPR gets incorporated into a standard, the
> participant loses their IP rights.

I would think your statement may be a tad too strong.  But I agree, it has
been getting more and more difficult to enforce patent rights when clear
process violations are shown, independent from the organization involved.
One significant aspect of the case mentioned above is that even violations
of the common conduct in the committee in question (something I have called
"culture" in a previous posts) may endanger the enforceability of patents,
even if one cannot, by the strictest interpretation of policy documents,
find support of a process violation under the written policy documents.

Not simple, this stuff.

Stephan

> On Nov 12, 2009, at 2:10 AM, Rob Glidden wrote:
> 
>> No argument on the recipe -- build a royalty free house on a royalty
>> free foundation with royalty free bricks and royalty free
>> inspection, etc.
>> 
>> But it wasn't the brick house that saved the three little pigs in
>> the end.
>> 
>> It is about going the distance in the face of the inevitable
>> shilling, calls to drive into a ditch, meeting-stacking et al.
>> 
>> And it is not about convincing the convinced -- it about proving
>> marketplace confidence. It is done all the time, codecs aren't the
>> unique special case some need them to be.
>> 
>> Of course vet contributions for blocking patents and other loopholes.
>> 
>> Some noteworthy stuff below.
>> 
>> Rob
>> 
>> 
>> 2001
>> 
>> http://www.itscj.ipsj.or.jp/sc29/29w12911jvt.pdf
>> N4400, December 2001
>> 
>> Terms of Reference for a Joint Project between ITU-T Q.6/SG16 and
>> ISO/IEC JTC 1/SC 29/WG11
>> for the Development of new Video Coding Recommendation and
>> International Standard
>> ...
>> "10.0 Patent and Copyright Issues
>> The project and joint group will progress the project work in
>> compliance with the Intellectual Property
>> Rights (³IPR²) policies and IPR reporting requirements and
>> procedures of both organisations
>> (http://www.itu.int/ITU-Databases/TSBPatent/ and
>> http://www.itscj.ipsj.or.jp/sc29/29w7ipr.htm)
>> .
>> *
>> JVT will define a ³baseline² profile. That profile should be royalty-
>> free for all implementations.* The
>> performance of this profile will particularly be the subject of
>> performance verification tests.
>> JVT¹s rules for the implementation of the IPR policy are contained
>> in Annex 3."
>> 
>> 
>> 2002
>> 
>> http://lists.mpegif.org/pipermail/discuss/2002-May/000347.html
>> 
>> [M4IF Discuss] RE: [M4IF News] To those concerned about MPEG-4
>> Licensing ...
>> Fernando Pereira fp lx.it.pt
>> Mon May 13 18:40:38 EDT 2002
>> 
>> * Previous message: [M4IF Discuss] RE: [M4IF News] To those
>> concerned about MPEG-4 Licensing ...
>> * Next message: [M4IF Discuss] RE: [M4IF News] To those concerned
>> about MPEG- 4 Licensing ...
>> * Messages sorted by: [ date ] [ thread ] [ subject ] [ author ]
>> 
>> Hi ! Yuval Fisher wrote:
>>> 
>>>> As for me, I'm looking at MPEG-4 Part 10 and hoping that it is
>>>> patent-free ;-)
>>>> I wouldn't hold your breath. Many companies are nervous about
>> submarine
>>> patents. There's a strong anti-free-license movement in MPEG.
>> 
>> Let me disagree with this statement ! As the current chairman of
>> MPEG Requirements, I would claim that MPEG is doing everything to
>> support the royalty free approach for the baseline profile of MPEG-4
>> part 10 (AVC) ... and there is a very large support within MPEG
>> members. Of course there is also people with a (legitimate)
>> different opinion but I would personally claim this is a minority.
>> 
>> Let me also explain that the approach is not simply everything
>> royalty free but a combination of a royalty free baseline profile
>> with other more complex profiles not necessarily royalty free (but
>> RAND). This combination may provide a good compromise between the
>> two possible extreme alternatives. Finally let me inform that 2
>> profiles were defined for AVC/H.264 last week in Fairfax: BASELINE
>> (to be royalty free) and MAIN (not necessarily royalty free).
>> 
>> Regards Fernando Pereira -- Fernando Manuel Bernardo Pereira, Ph.D.,
>> Professor
>> Instituto Superior Técnico - Instituto de Telecomunicações
>> Av. Rovisco Pais, 1049-001 Lisboa, PORTUGAL
>> Phone: + 351 21 8418460 Fax: + 351 21 8418472
>> E-mail: Fernando.Pereira lx.it.pt WWW: http://www.img.lx.it.pt/~fp/
>> 
>> 
>> 
>> [M4IF Discuss] RE: [M4IF News] To those concerned about MPEG- 4
>> Licensing ...
>> Rob Koenen rkoenen intertrust.com
>> Fri May 3 20:59:52 EDT 2002
>> 
>> * Previous message: [M4IF Discuss] To those concerned about MPEG-4
>> Licensing ...
>> * Next message: [M4IF Discuss] RE: [M4IF News] To those concerned
>> about MPEG- 4 Licensing ...
>> * Messages sorted by: [ date ] [ thread ] [ subject ] [ author ]
>> 
>>>> As for me, I'm looking at MPEG-4 Part 10 and hoping
>>> that it is
>>>> patent-free ;-)
>>> 
>>> 
>>> I wouldn't hold your breath. Many companies are nervous about
>>> submarine
>>> patents. There's a strong anti-free-license movement in MPEG.
>> 
>> Sweeping statements like these are very unhelpful.
>> 
>> It may indeed be unlikley that full JVT codec is going to be RF
>> (Royalty-Free).
>> There is, however, a strong desire among many parties to try and
>> establish a RF baseline. There is an ongoing effort to see how such
>> an RF baseline could be established. It is area in which people like
>> to maneuver carefully, for obvious reasons.
>> 
>> Rob
>> 
>> 
>> 
>> 2003
>> 
>> http://lists.mpegif.org/pipermail/discuss/2003-November/000541.html
>> Rob Koenen to Iain Richardson
>> /Thu Nov 20 07:47:47 EST 2003
>> /
>> 
>> (1) Does this mean that the goal of a royalty-free Baseline Profile
>> is not
>> going to happen ?
>> 
>> ...
>> 
>> I'll answer for what I know and understand today.
>> 1) Via Licensing's website states that their proposed terms cover
>> "use of
>> Baseline, Main, and Extended Profiles". MPEG LA's announcement
>> states "These
>> terms cover the entire AVC Standard regardless of which Profile(s) are
>> used". I think that gives you the answer.
>> 
>> 
>> 
>> 
>> 2004
>> 
>> H.264/MPEG-4 Part 10 is also subject to a number of essential.
>> patents.
>> However, in order to make the new standard as accessible as possible,
>> the JVT has attempted to make the Baseline Profile (see Chapter 6)
>> 'royalty free'. During the standardisation process, holders of key
>> patents were encouraged to notify JVT of their patent claims and to
>> state whether they would permit a royalty free license to the
>> patent(s). These patent statements have been taken into account during
>> the development of the Profiles with the aim of keeping the Baseline
>> free of royalty payments. As this process is voluntary and relies on
>> the
>> correct identification of all relevant patents prior to
>> standardisation,
>> it is not yet clear whether the goal of a royalty-free Profile will be
>> realised but initial indications are positive [1].
>> 
>> 1 In March 2003, 31 companies involved in the H.264 development
>> process
>> and/or holding essential patents confirmed their support for a
>> royalty-free Baseline Profile.
>> 
>> Iain E.G. Richardson, H.264 and MPEG-4 Video Compression: Video Coding
>> for Next-Generation Multimedia at 274 (John Wiley & Sons, 2004).
>> 
>> 2007:
>> 
>> (look also at what happened to the attorneys)
>> 
>> "Thus, while the language of the JVT IPR policies may not expressly
>> require disclosure by all participants in all circumstances (e.g.,
>> if relevant IPR is not disclosed despite the use of best efforts),
>> it at least incorporates a best efforts standard (even apart from
>> the submission of technical proposals).
>> ...
>> In sum, we conclude that Qualcomm, as a participant in the JVT prior
>> to the release of the H.264 standard, did have IPR disclosure
>> obligations, as discussed above, under the written policies of both
>> the JVT and its parent organizations"
>> 
>> http://www.cafc.uscourts.gov/opinions/07-1545.pdf
>> 
>> Trial court decision:
>> 
>> http://www.klgates.com/files/upload/eDAT_Qualcomm_8_6_07_Order_on_Remedy.pdf
>> 
>> 
>> 2007 SC29 revised patent policy
>> 
>> http://www.itscj.ipsj.or.jp/sc29/29w7ipr.htm
>> 
>> "Although royalty-bearing patented technologies may be included in
>> SC 29 standards, SC 29 suggests to its WGs to promote, whenever
>> possible, the inclusion of technologies that either do not require a
>> patent license, or that only require a RAND license without a
>> royalty or license fee."
>> 
>> 2007 ISO/ITU common patent policy
>> 
>> 2009:
>> 
>> MPEG HVC
>> 
>> 
>> 
>> 
>> 
>> Eric Burger wrote:
>>> In practical terms, I agree that there will be better and better
>>> codecs in the future. However, I would offer the older codecs are
>>> good enough for our purposes and will be safe.
>>> 
>>> On Nov 11, 2009, at 1:15 PM, Stephan Wenger wrote:
>>> 
>>>> The existence of at least a dozend of projects in the speech
>>>> coding field
>>>> today suggests to me that we have not yet reached the point of
>>>> technology
>>>> progress saturation in this field. Other that this minor point, I
>>>> agree.
>>>> 
>>>> Stephan
>>>> 
>>>> 
>>>> 
>>>> On 11/11/09 12:26 PM, "Koen Vos" <[e-mail]> wrote:
>>>> 
>>>>> 1. Technological progress saturates.
>>>>> 2. Patents expire.
>>>>> Therefore, the performance advantage of royalty-bearing standards
>>>>> diminishes with time, and high-quality, royalty-free standards are
>>>>> unavoidable. I'm convinced that today we have reached this point of
>>>>> commoditization for audio and speech coding technology.
>>>>> 
>>>>> koen.
>>>>> 
>>>>> 
>>>>> Quoting Rob Glidden:
>>>>>> Here is my view, perhaps you share it, perhaps you don't.
>>>>>> 
>>>>>> What the world needs now is royalty-free, standardized codecs.
>>>>>> This
>>>>>> is critical to the future of the Web, and the progress the
>>>>>> Internet
>>>>>> has brought to the world, and will bring to the world.
>>>>>> 
>>>>>> Video, audio, transport, the whole thing. Evaluated, vetted for
>>>>>> patents. Under an appropriate, responsible and complete royalty
>>>>>> free
>>>>>> process. No less.
>>>>>> 
>>>>>> IETF, ITU, and ISO/MPEG should all get going on this important
>>>>>> activity -- after all why shouldn't all of these organizations
>>>>>> include this as core to their mission.
>>>>>> 
>>>>>> I have, and no doubt you have too, seen countless explanations why
>>>>>> this should not, could not, will not, rather not, might not, or
>>>>>> can
>>>>>> not happen. Some well meaning and sincere, some from vested
>>>>>> interests. There are too many "powerful" interests against it.
>>>>>> "Important" commercial interests are ambivalent. It is too hard
>>>>>> "legally" or "politically" or "technically". It is just too
>>>>>> confusing to think through. There is no longer a critical mass
>>>>>> that
>>>>>> cares enough about keeping the future of the Open Internet open
>>>>>> and
>>>>>> royalty free. The well meaning are ignorant, or naive. Etc.
>>>>>> 
>>>>>> Don't settle. Take the issue of royalty free, standardized codecs
>>>>>> all the way to the top of these organizations. Do what it takes.
>>>>>> If
>>>>>> it requires new organizations, start them. It it requires revised
>>>>>> processes, revise them. This is the spirit that built the Web and
>>>>>> the Internet, this is the spirit that is its lifeblood, and this
>>>>>> is
>>>>>> the spirit that needs to be at the heart of its future.
>>>>>> 
>>>>>> Don't settle. Don't let those who have tried hard already, or have
>>>>>> only half-heartedly tried, justify the status quo or their
>>>>>> half-heartedness. Encourage them to focus on how to take the next
>>>>>> steps. Don't let convenient "interpretations" of standards
>>>>>> processes be an excuse for never starting, never finishing, or
>>>>>> never
>>>>>> setting up processes that will work. Need more legal background?
>>>>>> Find it. More technical information? Get it.
>>>>>> 
>>>>>> Don't settle. The world has plenty of patent-encumbered media
>>>>>> standards, plenty of proprietary solutions, and plenty of
>>>>>> standards
>>>>>> in other domains that have figured out how to deliver royalty
>>>>>> free.
>>>>>> But the world does not have enough royalty-free codec standards,
>>>>>> so
>>>>>> this is the task that needs to be addressed.
>>>>>> 
>>>>>> Rob
>>>>>> 
>>>>>> 
>>>>>> 
>>>>>> 
>>>>>> 
>>>>>> 
>>>>>> 
>>>>>> 
>>>>>> 
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>>>>>> 
>>>>> 
>>>>> 
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>>>> 
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