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.