Re: [rtcweb] Google VP8 Patent Grant for third parties [Was Re:Proposal for H.263 baseline codec]

["Paul E. Jones" <[e-mail]>]

> (not actually a quote):
> 
> > So if you really want me to be comfortable with implementing using
> > h264, buy me an insurance policy that will indemnify me (and any other
> > developer) for any costs related to defending against any future
> > infringement claims on h264. Perhaps I'd even settle for a fully
> > licensed software stack that includes such indemnification in its
> > license. This wouldn't help the hardware implementer, much, however.
> 
> Well darn, that isn't going to fly either!

We're still debating this on this?

I said before, either direction is a gamble.  But, the odds of not getting
successfully sued are in your favor with H.264, in my opinion.  Here's why:

1) Virtually all companies that have IPR on H.264 are known and the odds of
new companies entering the scene at this late stage are slim (seriously,
what troll would not have already made a claim by now)
2) Companies who developed H.264 have a financial interest in ensuring
H.264's success and would work to defend against bogus claims (I cannot
offer up their legal resources, but clearly they will not want some bogus
claim to stand in the way of profits, either from use of H.264 themselves or
licensing H.264 technology)
3) H.264 is EXTREMELY WIDELY deployed now and anything less than a concrete
claim is going to scrutinized heavily, the costs to pursue claims very high,
etc.  Legitimate companies with IPR should have already filed statements and
serious questions would have been asked.  To say such "holdout" companies
would not win friends at this point with some claim would be an
understatement.
4) While law and logic are sometimes at odds, I have to work from logic
since I'm not a lawyer.  Logically speaking, if there are 200+ patents
covering various aspects of H.264 and one more company comes in to make
claims, what should any reasonable court agree as to the value of that lone
patent versus the 200+ others on the same piece of technology?  (OK, this
might be reaching, but I seriously do think that damage awards would have to
considered in the context of that background.)
5) A damaging claim against H.264 at this point would affect entire
industries, and not just one industry.  I think even governments should
care, because it has an economic impact on a country.  I cannot imagine that
any court would issue an in injunction to halt sale of videos or streaming
video services world-wide, for example, on the basis of some claim relating
to some unknown patent nearly 10 years after the standard was produced.  If
such a claimant had valid IPR and even remotely claimed to be a subject
matter expert, they should be fully aware that every effort has been made to
identify IPR holders.  If I were a judge, I would not be too tolerant of
this (what I classify) deliberate, malicious, destructive behavior.

Now, should you choose to go down the path of VP8:

1) The only known IPR holder is Google, who has kindly offered to make their
IPR available for free
2) There are many, many companies who have IPR on H.264 because their
business includes, entirely or as a part, video coding.  It's impossible for
me to believe that with so much IPR on H.264 and so much research that went
into H.264, much of that research NOT finding its way into H.264, that not a
single one of those inventions by one of those companies does not cover VP8
3) There are legitimate companies who have invested millions in the
development of H.264 and own IPR on H.264.  Should VP8 becomes successful
and those companies lose revenue at the expense of VP8 and they hold IPR on
VP8, they would have every valid reason to assess royalties on your use of
VP8.  What do you want to bet that the royalties will be even higher than
use of H.264, too?  (That's a different bet, but since we're gambling
here...)
4) VP8 is not a standard and nobody was obligated to file any IPR statements
on VP8 (whereas participants in the development of H.264 were all requested
to submit statements; company representatives are asked at nearly every
meeting)
5) VP8 is not widely deployed and, quite possibly, not widely studied, even
by a good many experts in the video coding space  (I'm sure some have
studied it, but I am sure others are busy building "the next great thing").
As such, nobody should be surprised one day if VP8 does become widely
deployed that a company other than Google comes along and lays claim to the
technology
6) Should you get sued for embedding VP8 in your hardware or using it in
your software, Google is not going to indemnify you.  You are on your own.
The industry is not going to back you up (whereas I think they would for
H.264's benefit), because we all know that using VP8 is done so at our own
risk.  Perhaps with really good luck an H.264 patent holder might come to
your defense with evidence to refute, but don't count on it.  Those IPR
holders would prefer you switch to H.264.

As I said before, my opinions say nothing about the technical merits of one
codec vs. the other.  This is just my ramblings as I think through the legal
minefield here.  I personally see H.264 as relatively safe as compared to
VP8.

Of course, we will never know until VP8 gets widely deployed.  No IPR holder
who would be seeking to profit on VP8 will disclose a thing until VP8 is
widely deployed.

It is a gamble.  Place your bets.  My money is on H.264 as the safer option.

Paul