MPEG LA is blatantly trying to claim a monopoly on online video. The patent system is failing for software, and initiatives to “fix” the system are not working. A clear exclusion of software ideas from patentability is the only workable solution.

VP8 is an attempt to free the software industry and all software developers from this patent troll. MPEG LA did not develop VP8 but it wants to own it nonetheless.

What MPEG LA is now doing to VP8 is the same as what it previously did to another popular video format, MPEG h.264 (no relation, despite similar name). MPEG LA claims to represent 1,000 patents which are essential for anyone wishing to develop or distribute software which supports this format. With a patent thicket that size, reviewing the validity of the patents is impossible. The element of chance in court cases also means that even if they were all invalid, courts couldn’t be relied on to find this in all 1000 cases.

As for what’s practical, many software developers and distributors are individuals and small businesses. These usually have neither the resources nor the time to investigate or refute even a single accusation of patent violation.

MPEG LA wields thus a veto over everyone who wants to use that video format. MPEG LA can block other people’s development models and business models if it finds these inconvenient or insufficiently profitable for MPEG LA. It can extract revenues from those it does permit to use the format, and it creates a cloud of legal uncertainty over all video software because the terms of use can be changed now or in the future.

People use the h.264 format not by choice but by necessity. In computing, compatibility with existing data formats is essential. If you write a video player and it can’t play the videos that already exist, it is not a functional video player.

Because the profile of developers of software is so different from the profile of developers in industrial fields, the checks and balances of the system have no effect. Despite well-funded attempts in recent years to “improve the system”, the MPEG LA problem is worsening. The only practical solution is for software to be clearly excluded from patentability.

Financial support for End Software Patents is very welcome:

Categories: Case Law