x264, mpeg4 confusion

[dann]

Ok, I am trying to figure out whether x264 is patent encumbered or not. According to wikipedia x264 is an implementation of mpeg4 version 10 . Now according to the patent/licensing information there may be patented technology:

In countries where software patent regulations are upheld, the vendors of products which make use of H.264/AVC are expected to pay patent licensing royalties for the patented technology that their products use. A private organization known as MPEG LA, which is not affiliated in any way with the MPEG standardization organization, administers the licenses for patents applying to this standard, as well as the patent pools for MPEG-2 Part 1 Systems, MPEG-2 Part 2 Video, MPEG-4 Part 2 Video, and other technologies.

What's more, there is a section about the gpl in there which state:

shipping a product in the U.S. which includes an LGPL H.264 decoder/encoder would be in violation of the software license of the codec implementation........
If there is a requirement for a patent license to be sought, this is a clear violation of both the GPL and LGPL terms. Thus, the right to distribute patent-encumbered code under those licenses as part of the product is revoked per the terms of the GPL and LGPL.

Now if we go up one level to the mpeg4 listing it specifically states that MPEG-4 is a patented technology:

MPEG-4 is patented proprietary technology. This means that, although the software to create and play back MPEG-4 videos may be readily available, a license is needed to use it legally in countries that acknowledge software patents. Patents covering MPEG-4 are claimed by over two dozen companies.

Now x264 is billed as Freesoftware designed from scratch against the MPEG-4 open standard. From the forum posting for x264:

MPEG-4 (ISO 14496) is a broad Open Standard developed by the Moving Picture Experts Group (MPEG), a working group of the International Organization for Standardization (ISO)

I'm not sure how you can have a patent encumbered standard be Open. Because it is an ISO standard does not make it an open standard. So what is the deal here? I cannot seem to find a straight answer. Some places say it is an open standard but others indicate it is encumbered. Is x246 legal to use/distribute in countries that recognize patents against mpeg4?

[allix]

Its patented , the ogg codecs are the only non patented technology , sadly most of them use old algorithms, i don't blame anyone for not using it, you have to make very big files to get decent quality with Theora,
FLAC and Vorbis are doing better because the technology is good and not old.

[Tsuroerusu]

I'm not sure how you can have a patent encumbered standard be Open. Because it is an ISO standard does not make it an open standard. So what is the deal here? I cannot seem to find a straight answer. Some places say it is an open standard but others indicate it is encumbered.

Dann, the concept is really extremely simple. MPEG-4 is "an open standard" in the sense that anybody can implement it, as long as they license it. The specs for MPEG-4 is out there, but is it freely implementable? LIkely not. And I think that with OOXML, Microsoft has kindly showed us how easy it is to get a bogus format recognized as a standard. Also, software patents doesn't cover formats, they cover ideas and concepts. And there's so many damn patents, that it's trivial to hide one among the bulk of it.

Is x246 legal to use/distribute in countries that recognize patents against mpeg4?

NO!

Edit: Changed to NO!

The reason is that the GPL is incompatible with the Motion Picture Experts Group License Authority's (MPEG LA) license of the MPEG-4 patents. They of course grant a patent license for the licensee only, where as the GPLv2, and even more so with v3, grants a patent license for everybody who receives the software.

[dann]

Dann, the concept is really extremely simple. MPEG-4 is "an open standard" in the sense that anybody can implement it, as long as they license it. The specs for MPEG-4 is out there, but is it freely implementable? LIkely not. And I think that with OOXML, Microsoft has kindly showed us how easy it is to get a bogus format recognized as a standard. Also, software patents doesn't cover formats, they cover ideas and concepts. And there's so many damn patents, that it's trivial to hide one among the bulk of it.

Now here is a big bowl of confusion. To me, when a technology is listed as an Open Standard, that said technology can be implemented in a royalty free manner. This is not the case with MPEG4 then. So the definition of Open Standards is uncertain.

Is x246 legal to use/distribute in countries that recognize patents against mpeg4?

YES!

The reason is that the GPL is incompatible with the Motion Picture Experts Group License Authority's (MPEG LA) license of the MPEG-4 patents. They of course grant a patent license for the licensee only, where as the GPLv2, and even more so with v3, grants a patent license for everybody who receives the software.

NO!

Wait, if the GPL is incompatible with the Motion Picture Experts Group Licesnse Authority's (MPEG LA) license of the MPEG-4 patents, then said software cannot be distributed under the GPL. The technology behind the standard is patented. So the software cannot be distributed in the US (or other countries that recognize said patents). Unless I missed something here.

[Tsuroerusu]

Dann, the concept is really extremely simple. MPEG-4 is "an open standard" in the sense that anybody can implement it, as long as they license it. The specs for MPEG-4 is out there, but is it freely implementable? LIkely not. And I think that with OOXML, Microsoft has kindly showed us how easy it is to get a bogus format recognized as a standard. Also, software patents doesn't cover formats, they cover ideas and concepts. And there's so many damn patents, that it's trivial to hide one among the bulk of it.

Now here is a big bowl of confusion. To me, when a technology is listed as an Open Standard, that said technology can be implemented in a royalty free manner. This is not the case with MPEG4 then. So the definition of Open Standards is uncertain.

Well, that page just says it all:

"Many definitions of the term "standard" permit patent holders to impose "reasonable and non-discriminatory" royalty fees and other licensing terms on implementers and/or users of the standard. For example, the rules for standards published by the major internationally recognized standards bodies such as the IETF[2], ISO, and IEC permit their Standards to contain specifications whose implementation will require payment of patent licensing fees (none of these organizations states that they grant "open standards", but only "standards"). ITU has a definition of "open standard" that allows "reasonable and non-discriminatory" licensing."

Is x246 legal to use/distribute in countries that recognize patents against mpeg4?

YES!

The reason is that the GPL is incompatible with the Motion Picture Experts Group License Authority's (MPEG LA) license of the MPEG-4 patents. They of course grant a patent license for the licensee only, where as the GPLv2, and even more so with v3, grants a patent license for everybody who receives the software.

NO!

Wait, if the GPL is incompatible with the Motion Picture Experts Group Licesnse Authority's (MPEG LA) license of the MPEG-4 patents, then said software cannot be distributed under the GPL. The technology behind the standard is patented. So the software cannot be distributed in the US (or other countries that recognize said patents). Unless I missed something here.

You are not missing anything. This is indeed how it is. Of course, I wouldn't do this, because I believe you should have the four freedoms, but let's say that I license a patent to you, and say you can do this and this with it, then you can't do something that I havn't authorized you to do with it, like give it to people who don't pay. For example with MP3, you either have to pay 60,000 dollars per year to license the patents, or 5 dollars per user/device/customer. The GPL permits something that the license you get from the patent holder does not, and since patents are about ideas and not copyright, I can write an MPEG-4 decoder in COBOL (Well, maybe not, but you get the idea) and even though it's my code, I can't distribute it under the GPL, again, because of patents.

[dann]

The reason is that the GPL is incompatible with the Motion Picture Experts Group License Authority's (MPEG LA) license of the MPEG-4 patents. They of course grant a patent license for the licensee only, where as the GPLv2, and even more so with v3, grants a patent license for everybody who receives the software.

I believe i misread this the first few times. I'm still not sure how you get a YES to my original question. Given what you said, that the GPL is incompatible with the MPEGLA license, that would mean you could not legally distribute x264 under the GPL in countries that recognize the MPEG patents.

I poised this question to Drew last night and he gave me some insight I did not consider. He said that it is quite possible that distributing x264 in the US (or other countries that recognize said patents) would violate the patents or IP of the holder; but it comes down to whether said violation would:

• Be worth it to prosecute
  Be prosecutable

That is, if x246 is violating the MPEG4 patents then the MPEGLA would have to determine whether it would be financially sound to file a suit in conjunction with considering the prospects that the suit would return a favorable outcome. Since x264 is not making any significant amount of money from this technology, it would be a costly suit for MPEGLA to engage given that there would be very little return.

Now if RedHat started distributing the x264 software then it might be feasible for the MPEGLA to go after RedHat for patent violations.

It all sounds like a big game that one could go along with for years before becoming a victim of a suit. The MPEGLA could never file suit or contest but down line say RedHat starts making a lot of money. The MPEGLA could eventually come after them for infringement if they were distributing x264 libraries. Stuff like this makes it a legal minefield; very confusing.

I'm not even sure I understand it completely. That's why patents must go!

Now as for Open Standards, again; while this quote provides some insight:

"Many definitions of the term "standard" permit patent holders to impose "reasonable and non-discriminatory" royalty fees and other licensing terms on implementers and/or users of the standard. For example, the rules for standards published by the major internationally recognized standards bodies such as the IETF[2], ISO, and IEC permit their Standards to contain specifications whose implementation will require payment of patent licensing fees (none of these organizations states that they grant "open standards", but only "standards"). ITU has a definition of "open standard" that allows "reasonable and non-discriminatory" licensing."

That seems more to define the ISO or ITU definition of a standard, not an open standard. How can a standard be considered "open" if it is encumbered by patent and ip restrictions? Let's say OOXML passes ISO standardization. I have heard people say this will make OOXML and open standard. But if there are patent and IP restrictions in place, how can this be considered open? This technology could not be included in OpenOffice without some company paying the licensing/royalty fees to Microsoft (which I guess Novell, Xandros, and Linspire did). Yet how is this open when compared to ODF? It's not. So why does it get labeld, along with MPEG4, as an open standard?

[Tsuroerusu]

The reason is that the GPL is incompatible with the Motion Picture Experts Group License Authority's (MPEG LA) license of the MPEG-4 patents. They of course grant a patent license for the licensee only, where as the GPLv2, and even more so with v3, grants a patent license for everybody who receives the software.

I believe i misread this the first few times. I'm still not sure how you get a YES to my original question. Given what you said, that the GPL is incompatible with the MPEGLA license, that would mean you could not legally distribute x264 under the GPL in countries that recognize the MPEG patents.

ROFL, I am such a moron! Sorry Dann, I guess this is what happens when you're out of coca cola in the middle of the night!
I edited that original post, and changed it to "NO!".

I poised this question to Drew last night and he gave me some insight I did not consider. He said that it is quite possible that distributing x264 in the US (or other countries that recognize said patents) would violate the patents or IP of the holder; but it comes down to whether said violation would:

• Be worth it to prosecute
  Be prosecutable

That is, if x246 is violating the MPEG4 patents then the MPEGLA would have to determine whether it would be financially sound to file a suit in conjunction with considering the prospects that the suit would return a favorable outcome. Since x264 is not making any significant amount of money from this technology, it would be a costly suit for MPEGLA to engage given that there would be very little return.

Now if RedHat started distributing the x264 software then it might be feasible for the MPEGLA to go after RedHat for patent violations.

It all sounds like a big game that one could go along with for years before becoming a victim of a suit. The MPEGLA could never file suit or contest but down line say RedHat starts making a lot of money. The MPEGLA could eventually come after them for infringement if they were distributing x264 libraries. Stuff like this makes it a legal minefield; very confusing.

I'm not even sure I understand it completely. That's why patents must go!

Well, what it all comes down to in the end for the user is that they just have to install some additional packages to get this stuff working. I personally find it extremely easy to do on Fedora, no commands required. I don't see why this is a problem, if we look aside legal issues, because both Windows users, and even more so with Mac users, have to do this as well. I mean no way you get DivX or XviD support out of the box in Windows.

Now as for Open Standards, again; while this quote provides some insight:

"Many definitions of the term "standard" permit patent holders to impose "reasonable and non-discriminatory" royalty fees and other licensing terms on implementers and/or users of the standard. For example, the rules for standards published by the major internationally recognized standards bodies such as the IETF[2], ISO, and IEC permit their Standards to contain specifications whose implementation will require payment of patent licensing fees (none of these organizations states that they grant "open standards", but only "standards"). ITU has a definition of "open standard" that allows "reasonable and non-discriminatory" licensing."

That seems more to define the ISO or ITU definition of a standard, not an open standard. How can a standard be considered "open" if it is encumbered by patent and ip restrictions? Let's say OOXML passes ISO standardization. I have heard people say this will make OOXML and open standard. But if there are patent and IP restrictions in place, how can this be considered open? This technology could not be included in OpenOffice without some company paying the licensing/royalty fees to Microsoft (which I guess Novell, Xandros, and Linspire did). Yet how is this open when compared to ODF? It's not. So why does it get labeld, along with MPEG4, as an open standard?

Well, ISO is a "standards organization", it's not an "open standards organization". People consider patents to be open, because you can license "an invention", and then the inventor makes some cash. However the effects of the current system does the exact opposite.

[dann]

Well, what it all comes down to in the end for the user is that they just have to install some additional packages to get this stuff working. I personally find it extremely easy to do on Fedora, no commands required. I don't see why this is a problem, if we look aside legal issues, because both Windows users, and even more so with Mac users, have to do this as well. I mean no way you get DivX or XviD support out of the box in Windows.

I am not saying it's difficult to install this software. In fact, under Ubuntu, if you click on a MPEG4 file it will prompt if you want to download the necessary codecs if you do not have then and indicate the legal issues that may be involved. It's damn easy. I'm just trying to figure out whether it is legal to install the software, or more importantly, distribute the software.

Well, ISO is a "standards organization", it's not an "open standards organization". People consider patents to be open, because you can license "an invention", and then the inventor makes some cash. However the effects of the current system does the exact opposite.

I know that ISO and TCU do not provide "open standars." But what is confusing is what exactly is an open standard? What is the definition? I was under the impression that an open standard was a standard that could be implemented in software much like opensource or freesoftware code can be implemented. That is, I could create my own mpeg4 library based on the standard, because it is open and distribute it, like I could Open or Free software. It would be without encumbrance. But that is not the case.

TCP/IP is an open standard. In fact, in double checking this I came upon this wonderful article: Open Standards, Open Source. Here is a quote from the first paragraph:

Open standards are standards that are publicly defined and anyone can implement, where both their process of definition and who can implement the standard is non-discriminatory.

Given that statement, x264 cannot be an open standard, nor can MPEG4. x264 cannot be implemented under a GPL license in a country that upholds patent and licensing restrictions by the MPEGLA.

[dann]

Here is an even better article on Open Standards from the same guy above: David Wheeler.

[Tsuroerusu]

Well, what it all comes down to in the end for the user is that they just have to install some additional packages to get this stuff working. I personally find it extremely easy to do on Fedora, no commands required. I don't see why this is a problem, if we look aside legal issues, because both Windows users, and even more so with Mac users, have to do this as well. I mean no way you get DivX or XviD support out of the box in Windows.

I am not saying it's difficult to install this software. In fact, under Ubuntu, if you click on a MPEG4 file it will prompt if you want to download the necessary codecs if you do not have then and indicate the legal issues that may be involved. It's damn easy. I'm just trying to figure out whether it is legal to install the software, or more importantly, distribute the software.

Well, it is not, there's your answer (I don't mean this in an arrogant or offending way, but really, this is it!).

Well, ISO is a "standards organization", it's not an "open standards organization". People consider patents to be open, because you can license "an invention", and then the inventor makes some cash. However the effects of the current system does the exact opposite.

I know that ISO and TCU do not provide "open standars." But what is confusing is what exactly is an open standard? What is the definition? I was under the impression that an open standard was a standard that could be implemented in software much like opensource or freesoftware code can be implemented. That is, I could create my own mpeg4 library based on the standard, because it is open and distribute it, like I could Open or Free software. It would be without encumbrance. But that is not the case.

Dann you have to realize that as users and advocates of free software and open source development, we take the word "open" in "open standards" litterally. We're polluted my friend, and we obviously can't understand that people have to protect their "valuable intellectual property" (I put the quotes around this, because I honestly can't say this with a straight face without laughing. Richard Stallman has an excellent point about "intellectual point" being an obfuscation term).

TCP/IP is an open standard.

Ahh, but remember where that technology came from!
TCP/IP was designed by Bolt Beranek and Newman, and implemented by the University of California Berkeley's Computer Systems Research Groups, and later released to the public under this little thing called the BSD license. This was also before software patents became an issue.
TCP/IP is truly open and free implementable for a couple of very solid reasons, the best one being that if you do get sued, you can find prior art in pretty much all cases, because the protocols have such a long history, like UNIX itself. Speaking of which, remember that SCO's law suits have never been about patents, but about copyright infringements that they think have taken place.

In fact, in double checking this I came upon this wonderful article: Open Standards, Open Source. Here is a quote from the first paragraph:

Open standards are standards that are publicly defined and anyone can implement, where both their process of definition and who can implement the standard is non-discriminatory.

Given that statement, x264 cannot be an open standard, nor can MPEG4. x264 cannot be implemented under a GPL license in a country that upholds patent and licensing restrictions by the MPEGLA.

Just so we're clear, H.264 is the "standard" and x264 is the implementation of H.264. But yeah you're right, H.264 is not freely implementable, and it's illegal to distribute x264 inside the US. Phew, I'm glad I live in Europe!

Here is an even better article on Open Standards from the same guy above: David Wheeler.

Yeah, this guy writes amazing stuff, I loved this one: http://www.dwheeler.com/essays/commercial-floss.html.