Submarine software licenses: the “gotcha” of video codecs

Ben Schwartz wrote a very nice piece about proprietary video codecs, in particular H.264, MPEG-2, and MPEG-4. In essence, those who have purchased software like Final Cut Pro with the idea of using it to make commercial video have fallen into either a carefully laid trap by the patent holders or a simple oversight on the part of companies like Apple who bury things like this well within the fine print.

Ben’s commentary below the relevant license portions says it all:

Noticing a pattern? You have a license to use their software, provided you don’t make any money, your friends are also all correctly licensed, and you only produce content that complies with the MPEG standard. Using video for a commercial purpose? Producing video that isn’t within MPEG’s parameters? Have friends who use unlicensed encoders like x264, ffmpeg, or xvid? Too bad.

But it gets even more troubling for free software users (Ben here uses the term “open-source” but it applies equally):

This last thing is actually a particularly interesting point. If you encode a video using one of these (open-source) unlicensed encoders, you’re practicing patents without a license, and you can be sued. But hey, maybe you’re just a scofflaw. After all, it’s not like you’re making trouble for anyone else, right? Wrong. If you send a video to a friend who uses a licensed decoder, and they watch it, you’ve caused them to violate their own software license, so they can be sued too.

This is probably one of the strongest cases against software patents I have come across. Thankfully the EU rejected software patents as of last time I checked, and hopefully will continue to do so. The US seems to be the only place where one can patent a computer program, clearly outside the scope of what patents were intended for.

Patents should be restricted to physical inventions. It’s absurd to be able to patent not just a computer program, but an entire class of computer programs which do the same thing.

To be fair about it, those who hold the patents have a strong disincentive from chasing down everyone who infringes on the patent. In addition to being cost-prohibitive, it is an almost certain PR disaster. This does not excuse what amounts to legalized extortion.

The problem runs even deeper than “just don’t use H.264 or other patented codecs.” The rather low level adoption of patent-free codecs like Theora and Vorbis in consumer electronics equipment often makes the idea a no-go. Most digital audio and video players will not play Theora or Vorbis files. (Vorbis was designed as an MP3 replacement.)

Making a DVD or Blu-Ray disc that plays in most off-the-shelf players simply cannot be done without infringing upon the patents. Troubling here is that the Blu-Ray standard (and not that it matters now, but HD DVD as well) easily could have been written to allow the use of Theora or even Dirac. The decision to not standardize on a patent-free codec was almost certainly driven by greed; the same corporations which make the devices get most of the patent royalties on H.264, MPEG-2, MPEG-4, etc.

A commentary on blog comments

Mashable’s recent story about two different blogs and comments was definitely an interesting read. It covers the separate but oddly coincidental stories: a Daring Fireball mirror which gives readers a place to comment on entries, something John Gruber himself does not do, called appropriately enough, Daring Fireball with Comments (which I refer to as DF and DFWC, respectively below); and the purportedly temporary demise of comments on Engadget.

I have gotten a few comments form time to time here but it’s never been something I would have arbitrarily turned off. I have always moderated the comments on all three of my blogs (otherwise one would not be able to find the real comments underneath all the spam, and I do get my share of comment spam) but the quantity of comments has never been such that I can’t take a few minutes out of every other day to do so.

Now if this site was at the level of DF, on the other hand, it might be a significantly daunting task. John chose the path of concentrating on the content, rather than spending probably a good hour a day deciding which comments make the cut. And honestly, I respect his choice there, but I also understand that there are people out there who will want a forum to comment on a blog even if it does not offer commenting in place.

I have to wonder about the copyright and trademark implications of DFWC’s design. It is possible but unlikely that DFWC’s creators asked John for permission to copy the DF logo and design. It’s possible and a bit more likely that John is okay with DFWC on the theory that it’s more publicity for him (after all, the links on DFWC copied from internal links on DF go to the original DF, including the membership link). It’s possible but extremely unlikely that John doesn’t know about DFWC yet at all, but if this is the case, he will when he next checks his access logs and notices DFWC in the referring sites.

And there is also the story about Engadget and its temporary comment moratorium. The official word from Engadget states in part:

Luckily, our commenting community makes up only a small percentage of our readership (and the bad eggs an even smaller part of that number), so while they may be loud, they don’t speak for most people who come to Engadget looking for tech news.

It goes on to say that in essence, the downtime will be used for hunting down and banning those who have posted the undesirable comments. And for a site as high-profile as Engadget, this kind of a move is understandable and not entirely unexpected. Hopefully it works out for them.