Can We Legislate Past the H.264 Debate? 310
Midnight Warrior writes "We could solve the H.264 debate if a country's legislature were to mandate that any patents that contribute to an industry-recognized standard were unenforceable in the application of that standard. Ideally, each standard would also be required to have a 'reference design' that could be used without further licensing. This could also solve problems with a ton of other deeply entrenched areas like hard drives, DRAM, etc. RAND tries to solve this strictly within industry, but both the presence of submarine patents and the low bar required to obtain a patent have made an obvious mess. Individual companies also use patent portfolios to set up mutually assured destruction. I'm not convinced that industry can solve this mess that government created. But I'm not stupid; this clearly has a broad ripple effect. Are there non-computer industries where this would be fatal? What if the patents were unenforceable only if the standard had a trademark and the implementer was compliant at the time of 'infringement'? Then, the patents could still be indirectly licensed, but it would force strict adherence to standards and would require the patent holders to fund the trademark group to defend it to the end. In the US model, of course."
You got the government industry bought (Score:4, Interesting)
I'm not convinced that industry can solve this mess that government created.
You people are like children. Mommy, let us do this! Mommy, let us do that! Then things don't work out quite the way you wanted them to. Mommy, it's all your fault!
Back in 1988... (Score:5, Interesting)
You're a smartass. Everybody hates a smartass.
No (Score:5, Interesting)
I don't think it'll in any way be practical to expropriate that IP, which is essentially what you are talking about. However, that is not the biggest problem with patents. The biggest problem with patents is that a standard is never proven patent free, only that no claim of infringement has been made against it yet. This is why I would like standards bodies to have the ability to call for patents, and any patent claim not made within a reasonable time frame is forfeit as related to that standard. A relevant current example is Theora - they claim it's patent free but is it really? What if someone like ISO or ITU-T could publish the standard, demand that any patent claims must be done within three months and if none were made you knew with 100% certainty that any later claims are null and void? It would be wonderful. I don't see this as a way of freeing IP, but it would go a long way of reducing patent FUD and submarine patents. Even if it should turn out to be patented you know which bits and could work to remove those and try again.
Patents system is based on 18th Century technology (Score:2, Interesting)
Some of the founders were worried that the patent system wouldn't allow enough time for inventions to spread, as America had a much greater land mass than England. That's how out of date this idea is.
Software patents are totally worthless. All they do is impede progress. Consider a software patent on controlling a lawn mower. You could patent this idea. Could you patent lawnmowers? Of course not - patenting the idea of cutting grass can be laughed off by everyone, except for a few lawyers and jurors in East Texas. Adding the abstraction of software control does not make the idea new or worth protecting.
What people don't realize is that you could never patent the end result of an invention, only the particular way in which you solved the problem. With software, they are patenting end results, saying adding accelerometers with a touch screen that has a cellular radio is revolutionary, or that providing a video stream with a certain open codec on a computer needs to be protected. Well, no it doesn't. Protecting the certain way in which you use software, hardware, and branding to release your product is protected under copyright and trademark.
Intel should not be allowed to patent passing data through the light spectrum. Similarly, anyone who releases their codec as an open standard cannot patent playing back the codec, if someone figured out a way to do it with their own different software.
Re:Back in 1988... (Score:3, Interesting)
Heh.
Sounds like the lawyer felt threatened by the idea. He probably thought that if such a law were to take effect, there'd be less need for legal council. Thus his dickish reply.
Re:No. Just pay up (Score:4, Interesting)
You buy an HD camera. it records in h.264 The moment you upload it tot he web you are supposed to buy another license for that video. The moment you share that video at your friends house on their TV. You need another license. what's that, you want to transfer that video onto a DVD, that's two more license violations.
I wish people would stop and read more about the licensing issues of H.264 They are currently generous, but MPEG-LA can literally revoke all licenses and make everyone pay fora separate license to create,view, edits, or distributes H.264 video.
I've always been curious about this. The patent is obviously required for the creation of the encoding and decoding software. But how can distribution of an already encoded video be in violation of the patent? It doesn't implement the patent, only the results of using the patent. This really needs to be something that the legal basis of needs to be challenged.
Re:Have you really thought this all the way throug (Score:2, Interesting)
Here is the thing.
Software is the only industry that that is encumbered by both copyright and patents.
Reasonable IP protection is a good thing.
I like that there are patents and copyright.
But they should not cover the same material in this way.
Copyright is the more appropriate protection for software (though its duration is far to long).
Re:What's an "industry-recognized standard"? (Score:3, Interesting)
Re:What's an "industry-recognized standard"? (Score:5, Interesting)
...any patent infringement claims against H.264 must be made known within 6 months of the passage of this law.
I don't think that's what the OP means. Here's what he wrote:
any patents that contribute to an industry-recognized standard were unenforceable in the application of that standard.
I think he means that any patents contributed to an industry standard consortium (like the WiFi Alliance) can't be enforceable. You're suggesting something about patents not contributed to the standards body being enforced against implementations of the technology that are authorized by the standards body. Or something.
Honestly, I'm not entirely sure what either of you mean, or why. And IAAL - in fact, I practice in this area every day.
Is this about making sure that technologies issuing from the standards body are freely available for use by anyone? That's the whole point of the patents owned by the body - to ensure that implementations follow the guidelines of the standards body (particularly about compatibility.) So you're lobbying to allow people to implement standardized technologies in non-compatible ways - i.e., in favor of "embrace, extend, extinguish?" I don't think anyone wants that.
Or maybe you're arguing that if a company has technology and patents verging on the subject matter of an industry standard - e.g., a technology competing with WiFi - but chooses to keep it proprietary, then the company can't assert its patents against implementations issuing from the standards body. That's also a bad idea - should we really force the entire industry onto one standard? Doesn't that deter the advancement of technology through the development of alternative standards that might be better? Bluetooth was first conceived as a potential competitor for WiFi, but it has its own niche and is widely implemented for headsets and such. Under this type of rule change, Bluetooth would have been scrapped as soon as WiFi took hold.
As an aside - the "submarine patents" cited by the author of this post haven't existed for decades, because (1) the patent term calculation was changed to be measured not from the date of issue, but from the date of filing, and (2) most patent applications are published at 18 months.
This is a complex field. It's easy to get confused. But the field suffers from a wide range of folks who don't understand it, and yet still want to "fix" it. Hence, this post, and many like it on Slashdot and elsewhere.
possible workarounds (Score:3, Interesting)
There are several factors to the H.264 problem. The problem of patents on standards is hard to legislate away unless the legislature sets the standards. That solution SHOULD be applied to things like the electrical code (where it's a mandate as well as a standard). There are just too many problems waiting if it's applied to mere industry standards.
Instead, that problem has to be solved by people behaving tastefully and not being idiots, so I suppose I'm saying it won't be solved.
The second issue is the MPEG-LA's use of FUD to scare others away from more open standards (or at least give them an excuse). THAT can be partially cured by declaring a limited time to sue over a supposed infringement. It's been 10 years for theora. If they haven't found a reason to sue yet, there isn't a valid one. The principle of estoppel applies well here, but the high cost of court could be avoided by writing it into law as a presumption rather than something you have to argue in court.
Narrowing the scope of patent suits by legally recognizing the right of a buyer to presume that relevant patents have been licensed and so absolving them of any further responsibility would help. For example, if my reasonably anticipated use of a cameras (that is, taking pictures with it for any purpose) violates a licensing agreement, it's the manufacturer and not me who can be sued over it.
The rest of the problem will require court reforms (sorely needed anyway) to make going to court affordable for mere mortals and reforming the patent office so that it stops rubber stamping everything. Perhaps if a patent is ruled invalid in court, the USPTO should be on the hook for the costs of that court case (since if it had done it's job nobody would have been in court over the patent).
We just need a small change to antitrust policy (Score:3, Interesting)
ANSI used to have a policy that they would not accept standards which contained patented components. That changed in the 1980s, I think. (The link to ANSI's patent policy [ansi.org] is currently returning the message "Cannot connect to the configuration database. For tips on troubleshooting this error, search for article 823287 in the Microsoft Knowledge Base at http://support.microsoft.com./ [support.microsoft.com]")
The legal way to address this is to require that standards bodies, from IEEE to ANSI to MPEG-LA, lose their exemption to antitrust law if they promulgate standards which contain patented components. Without that exemption, when companies get together to agree on a standard, it's conspiracy in restraint of trade.
In general, most of the more annoying patent problems are really antitrust problems. Anyone can get a very narrow patent on a very specific way of doing something. Such a patent is not useful unless the very specific way is a de-facto standard enforced by market dominance. That's an antitrust issue.
The reason MPEG-LA gets away with this is that the Justice Department signed off on it in 1997. [berkeley.edu] That's consistent with the FTC-DOJ 1995 guidelines [usdoj.gov] in this area. Anyone can buy an MPEG-LA license under stated terms. So they meet the guidelines. The guidelines don't address the issue of the interaction of de-facto standards and market power. They should. That's what needs to be revised.
For background, here's a speech by an FTC commissioner of the Clinton era [ftc.gov] on this issue. He makes the point that antitrust lawyers and patent lawyers don't talk to each other much and don't understand each other's fields. Also see this Justice Department Antitrust Division talk from 2007 [justice.gov]. If you want to talk intelligently about this issue, you need to read these materials.
Re:Uh huh (Score:4, Interesting)
As I understand the license, distributing the movie for free, but having the video hosting provider (such as Youtube) inject ads into your movie, requires that both you and the provider have a license.
MPEG-LA prevents non-commercial use (Score:4, Interesting)
That's what this fight is about, and why Vorbis is being developed. And submarine patents do exist; there's much FUD by MPEG-LA members being spread about the possibility of Vorbis infringing yet unknown patents.
What we really need is compulsory licensing at some percentage of the per head sale price. That way we still get the commercial value of patents without discriminating against non-commercial uses.
Re:No (Score:3, Interesting)
Given that the alternative is forcing everybody looking to implement the standard to follow the published information from all patent issuing bodies, and scour them on the astronomical chance that somebody has patented SOMETHING belonging to the standard, SOMEWHERE, for which you could be potentially liable, I'd say the GP's option is far better.