I provided comments to journalists reporting on the announcement, stressing the need for a well-documented patent clearance. eWeek, Dr.Dobb's and The Register were among the websites that picked up some of those comments, which are consistent with what I wrote on this blog two weeks ago in a broader context that also included Theora.
In favor of open-sourcing
In this particular case, since Google uses a newly created license (based on a part of the BSD license), it isn't a FOSS license in the formal sense until the Free Software Foundation declares it a free software license and the Open Source Initiative declares it an open source license, but let's optimistically assume that it will at least receive OSI approval.
Open-sourcing useful program code is great. But it also requires a very responsible approach. That's why I issued my comments. Let's face it: Google didn't take the WebM initiative purely out of generosity. Google is a business and has strategic interests involved. That's legitimate, and if such business interests benefit open source, that's wonderful. However, concerning the need to proceed responsibly, the one thing I don't want to see happen is that FOSS developers run into big and economically disastrous problems in undue reliance upon Google's vague assurances concerning patents.
Patent litigation can cost millions. Having to rewrite a piece of software later, due to patent problems, can be prohibitive and turn all of the development effort put into a project into an irrecoverable loss (in the worst case). Those are serious risks, especially in such a patent minefield as codecs.
Technical similarities suggest high risk of patent infringement
Jason Garrett-Glaser, the developer of an open-source H.264 player (meaning one can use his code per se on open-source terms but based on the type of use may need an H.264 license from MPEG LA), obtained the VP8 specs beforehand and commented on them in great detail (understandable only with in-depth technical knowledge about codecs).
Jason's analysis discusses technical limitations of VP8, the quality of the documentation (which doesn't seem to impress him), and concerning potential patent issues he concludes that " this is a patent time-bomb waiting to happen."
He "simply cannot believe that they will be able to get away with this, especially in today’s overly litigious day and age. Even VC-1 differed more from H.264 than VP8 does, and even VC-1 didn’t manage to escape the clutches of software patents." (VC-1 is a different format)
[Update] Carlo Daffara posted an analysis that disagrees with Jason's assessment in some ways. Carlo believes that the developers of VP8 made a lot of effort to steer clear of patent infringement. However, Carlo also points out that no one can guarantee that no third-party patents are infringed. I think Carlo made an important contribution to the debate, and his analysis is yet another reason (not a substitute) for asking Google for explaining in detail its position concerning patents.
No indemnification, no holding harmless
Jason also points out that Google doesn't provide any indemnification of developers adopting VP8 as part of WebM, while Sun did so in case of its OMS. I absolutely agree with Jason that the fact that Google doesn't offer any indemnification -- and I actually think they should go beyond mere indemnification and even have a hold-harmless clause in favor of adopters of WebM. To hold harmless means that a vendor also takes care of legal fees, which can be so massive in case of patent litigation that individual developers and smaller companies can't afford them, while Google could.
Google's refusal to indemnify (let alone to hold harmless) calls into question that Google is really certain that there's no potential problem with patents. Developers who believe Google's vague statements that they've looked into this are neither provided with any details of that analysis nor with legal protection. It comes down to a "trust us" kind of message.
Google wouldn't be able to solve the problem with its own patents
Some believe that if all else failed, Google might step in and use some its own patents against third parties going after WebM adopters. There's that perception out there of Google being incredibly powerful. In some ways Google is indeed massively powerful, but as far as patents are concerned, it is small compared to Apple and even Apple isn't one of the biggest patent holders. There are far bigger ones out there.
Starting patent disputes with multiple major patent holders wouldn't be an option for Google. In such a situation, those large patent holders would be able to point to all sorts of patents they own and that Google infringes, and they could so on a hugely greater scale than the other way round.
There's already empirical evidence that Google is neither willing nor able to use its patents. HTC, a maker of smartphones based on (among other operating systems) Android, is currently being sued by Apple over patent infringement. Apple's lawsuit places particular emphasis on patent infringement by Android, Google's smartphone operating system. So far Google hasn't come to the aid of HTC or other Android adopters. Also, HTC agreed to pay patent royalties to Microsoft, and there was no indication of Google doing anything to enable HTC to avoid paying those fees.
Steve Jobs pointed to the patent risk again
Jason's aforementioned analysis received a high-profile endorsement from Steve Jobs, who replied to someone asking him about VP8 (the video part of WebM) with only a link to Jason's blog.
Given that Steve Jobs previously said that a patent pool was being assembled to go after Theora and other "open source" codecs, his linking to an analysis that estimates the patent risk to be very substantial can be seen as a reaffirmation of his assumption that WebM/VP8 won't be the patent-free solution the FOSS movement would like it to be.
MPEG LA contemplating the creation of a patent pool for WebM
On Thursday, AllThingsD reported that MPEG LA, the patent pool firm behind H.264 and other patented codecs, is considering the creation of a patent pool for WebM.
MPEG LA wouldn't be saying so if the firm didn't believe that it holds patents that read on WebM and, I presume, especially on VP8 (the video part of WebM).
MPEG LA's business is all about aggregating patents: they create pools to which multiple patent holders can contribute, and they then offer everyone (contributors as well as everyone else) licenses to an entire pool, such as the H.264 pool. Those licenses aren't royalty-free the way Google would like WebM to be.
That explains AllThingsD's headline: Google’s "Royalty-Free" WebM Video May Not Be Royalty-Free for Long
The Register also contacted MPEG LA and received an answer consistent with the one given to AllThingsD.
That article quotes me as saying that I applaud Google for open-sourcing the codec but that I consider more assurances to be necessary.
More concern among responsible open-source advocates
Simon Phipps, previously Sun's chief open source officer and still a board member of the Open Source Initiative, takes a very similar position in a blog post published yesterday. He states (toward the end of his post) that he has "heard from many thoughtful people who like [Simon] want to cheer loudly yet also want these issues addressed."
So this isn't a question of being for or against open source, or for or against Google. It's a question of how to assess a risk. I use and like a lot of what Google offers. I support open source all the way. But I'd hate to see developers adopting an open-source technology exposed to patent-related risks. This could be ruinous for some.
There are some who believe that everyone should just support WebM and take his chances. That's a defiant attitude. I'm sympathetic to the cause of having a "free" codec, but it will only be free if there are no problems with third-party patents. It's not enough for Google to make its own patents available. The problem is that there may indeed be other patents that are not available on a royalty-free basis anytime soon.
It's also a question of a fair allocation of risks and opportunities:
- Should WebM become a big success, then Google will reap more benefits than any other company on this planet. It can make use of a free codec in many ways, including Android and YouTube. Google could afford to pay royalties, but it would boost their profits to avoid it and it would give them strategic leverage to control an important codec.
- Should anything go wrong with patents, Google could stand on the sidelines while the adopters of the technology it put out might pay dearly for their reliance upon Google's assurances and possibly their false hopes of Google being willing and able to use its own patents to bail them out.
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