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Government Patents Your Rights Online

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."
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Can We Legislate Past the H.264 Debate?

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  • by fph il quozientatore (971015) on Sunday May 09, 2010 @11:29AM (#32147200) Homepage
    What's an "industry-recognized standard"? Who has the authority to make them? Defining this could raise more problems than the ones this whole thing is supposed to solve...
  • While we're at it (Score:1, Insightful)

    by Hal_Porter (817932) on Sunday May 09, 2010 @11:30AM (#32147210)

    Can we say that any property rights - intellectual or otherwise - for the ingredients of Cheetos, ramen and anime are unenforceable. Then I we can all watch free anime DVDs and eat Cheetos and ramen. Also the telco should give me unlimited download bandwidth and stores that deliver ramen and Cheetos should be prevented from charging.

  • No. Just pay up (Score:2, Insightful)

    by Anonymous Coward on Sunday May 09, 2010 @11:31AM (#32147222)

    The world has moved on. People are already playing their x264 videos and sharing their mkvs. This IS the standard for video. My linux-based sammy TV plays the files just fine.

    If you want Linux to play catch-up and odd-man-out yet again and wining about stuff that end-users will never care about like licensing, go on. The world doesn't care about your weirdo software religion and never will. This proposal requires the entire world to change to work. I wouldn't hold my breath for it.

  • by Mindcontrolled (1388007) on Sunday May 09, 2010 @11:32AM (#32147232)
    Is completely clueless trolling in the summary the new standard on /. now? What does the fact of a "standard" being "trademarked" have to do with patent issues? How do you compensate patent holders if you invalidate their patent ex post facto? What "mess the government created"? Holy cow, this summary is a new low. Besides, if the author of the summary explicitly states that "he is not stupid", well, we can pretty sure about his intellectual capacity.
  • Fifth Amendment (Score:0, Insightful)

    by Anonymous Coward on Sunday May 09, 2010 @11:34AM (#32147250)

    Any such legislation would reduce the property rights of existing patent-holders and therefore violate the Fifth Amendment. All patent-holders would need to be "justly compensated" for this taking of property.

    This is the same reason why copyright terms cannot be shortened, even if you got a bill to do so past the Disney lobby.

  • by WrongSizeGlass (838941) on Sunday May 09, 2010 @11:35AM (#32147256)

    Can We Legislate Past the H.264 Debate?

    No.

    What's an "industry-recognized standard"?

    "No" is recognized by almost every person, corporation and country. I'd say that's pretty standard.

    This is just a bad idea ... even worse than letting people like me post on Slashdot.

  • by Quixotic Raindrop (443129) on Sunday May 09, 2010 @11:35AM (#32147258) Journal
    and eliminate Software Patents entirely.
  • by Dragoniz3r (992309) on Sunday May 09, 2010 @11:36AM (#32147270)
    "I'm sorry sir, your idea has become too successful, we're going to have to take it away from you now."

    Is this some sort of joke? This is similar to claiming that is too important to fail, thus the government should take it over and run it "for the people." The real solution is to make sure you can't get patents on trivial algorithms that anyone would come up with, when presented with a particular problem. Not to take away genuinely innovative approaches that just so happen to become popular.
    Yes, it's true that most software patents are trivial. But not all are, and the ones that aren't should be protected just like any other innovation or invention.
  • by sopssa (1498795) * <sopssa@email.com> on Sunday May 09, 2010 @11:38AM (#32147286) Journal

    This is just a bad idea ... even worse than letting people like me post on Slashdot.

    Exactly, and who will develop these technologies and put millions in to them if they can't get it back and/or profit from it? Isn't that exactly why US has had such innovative technology industry which promotes the basic idea of American capitalism? Now you want to take it away?

  • Re:Uh huh (Score:3, Insightful)

    by hedwards (940851) on Sunday May 09, 2010 @11:42AM (#32147318)
    No it doesn't. They could choose to withhold permission for it being included in the standard. Which is really the point, a lot of these formats would never have become standard if they had been forced to pay royalties on it from the get go. GIF and JPEG for instance ended up having issues, not to mention somethings with submarine patents where the corporation holding the patents lies about it.

    The problem is the abuse of questionable patents that aren't disclosed or utilized by the entity holding them then holding the world hostage after the standard takes off. All standards should be unencumbered and free to use. You want to be paid? Fine, just do it with something that isn't a standard.
  • by loufoque (1400831) on Sunday May 09, 2010 @11:44AM (#32147328)

    Is this some sort of joke? This is similar to claiming that is too important to fail, thus the government should take it over and run it "for the people."

    I don't see it as a joke, on the contrary I find it very sensible.
    I guess it's a matter of political opinion. The government should ensure the best for the people rather than allowing a single company (or consortium) to get royalties for things that have become ubiquitous in today's world, as that is hindering both innovation and regular activity.

  • by The Mighty Buzzard (878441) on Sunday May 09, 2010 @11:46AM (#32147342)
    It's an excellent idea that makes huge whopping loads of sense; therefore, it will never even be authored as a bill, much less considered on the floor of any legislative body.
  • Re:Fifth Amendment (Score:4, Insightful)

    by hedwards (940851) on Sunday May 09, 2010 @11:47AM (#32147350)
    No, it wouldn't. Despite pleas from conservatives to the contrary, nobody forces these people to allow the use of their patents in standards. They allow it because it gives them the chance to file massive law suits later on for infringement. Meaning that people have to pay for the license, suit or be left unable to use the standard.
  • Re:No. Just pay up (Score:5, Insightful)

    by peragrin (659227) on Sunday May 09, 2010 @11:47AM (#32147352)

    but you then can't redistribute said videos.

    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.

  • by Registered Coward v2 (447531) on Sunday May 09, 2010 @11:47AM (#32147356)

    More appropriately, when does something transition from a "good idea that is sparsely implemented" to an industry standard? If you set the criteria as "defined by an industry organization" (such as ANSI, ASNE) then why would a company allow patented tech into the standard? Would MILSPEC constitute an industry standard? I think the battle point would just change, with companies wanting larger license fees early because they'd lose them later; which would limit the adoption of a standard. In addition, they would have little incentive to allow free licensing to encourage adoption since there's no money at the other end.

    I'm not sure what the answer is - perhaps a compulsory license fee that is the same for all users of the technology? Of course, then I could charge a high upfront one time fee, rather than a per unit fee, effectively locking out newcomers.

    Of course, eliminating submarine patents would go a long way. If a person has applied for a patent, they should be required to notify a potential infringer when they first notice the infringement, not after the patent being granted. After a certain time limit, the infringer should be grandfathered into non-infringement. If they have been notified, and the patent subsequently is upheld, then the are liable if they failed to modify their infringing item. A separate arbitration board would hear arguments, and if they decide the patent appears to be valid then either they settle or the infringer posts a bond set by the panel. The winner of the eventual suit gets the bond. I would even say that granting the patent, and winning a challenge, would be enough to get the patent holder the bond; since a panel of experts decided the infringement issue earlier but did not rule on the patentability. Alternatively, they could settle both issues at once

  • I think the sheer complexity of this approach alone would have everything everywhere tied up in litigation for years. That alone is a mark against it.

    Instead, let's use a simpler method, and take away patents from software, methods, or any other intangibles. That will take away the current minefield where almost any nontrivial software is technically in violation of a patent. And it would make sense.

    A brilliant new design for a computer (or a piece of it) can be patented. (Note this means a quantum leap, not an incremental improvement). In the same vein, if you came up with a brilliant new design for a guitar, causing it to weigh 40% less and have a tone quality far better than anything on the market, you could patent that guitar design.

    However, if you came up with some brilliant new chords that this guitar can play, you can't and shouldn't be able to patent those. Even if they're brilliant, even if you're the first to ever play them. You can copyright any songs you write with them, of course. But you can't keep someone else from using the same concept in their own songs.

    Software is the same as the music. It is the unpatentable intangible played on the patentable tangible. You can copyright it, but you should not be able to stop someone from independently create something interoperable.

  • Re:Uh huh (Score:3, Insightful)

    by Goaway (82658) on Sunday May 09, 2010 @11:47AM (#32147366) Homepage

    a lot of these formats would never have become standard if they had been forced to pay royalties on it from the get go.

    Pretty much all the places where h.264 is used, it had to be paid for from the start, and it was still chose, because it is very good.

  • by ciaran_o_riordan (662132) on Sunday May 09, 2010 @11:49AM (#32147380) Homepage

    Patent legislation in the USA is very unclear on questions about whether it should apply to software. That's why it's always ignored in the debate, with everyone focussing on the rulings from the CAFC and the Supreme Court. There is good grounds for saying the legislation excludes software ideas, since the Constitution only allows patents where they promote the progress of useful arts - and all the studies say software patents impede such progress.

    A flat exclusion of software from patentability is one solution, and its the best one. Other possibilities include an exclusion of liability when using ideas for the purpose of compatibility. That wouldn't fix all problems, but it would fix the h.264 and other file format problems.

    Related info on en.swpat.org:

  • by sribe (304414) on Sunday May 09, 2010 @11:49AM (#32147384)

    So, basically, your idea is that if a patented "invention" turns out to be really important and useful, the patent should be rendered unenforceable. Yeah, good luck sneaking that proposal through ;-)

  • Actually I think its rather a case of the industry members who are getting left behind want a legislative solution to their problem, at the expensive of the industry members who have gained the advantage of a headstart.
  • by vyrus128 (747164) <gwillen@nerdnet.org> on Sunday May 09, 2010 @11:57AM (#32147426) Homepage

    So you oppose patents, then? Or do you like mommy-granted monopolies, and just start crying when the other children try to get your monopoly taken away? :-P

  • Re:No. Just pay up (Score:3, Insightful)

    by LingNoi (1066278) on Sunday May 09, 2010 @11:57AM (#32147428)

    Your HD camera that records in h.264 has a license, the TV you have that plays h264 has a separate license, the video you upload to the web isn't your problem unless you own the site and over 150,000 people view it in which case you're correct and need to pay for a license however I doubt that case is valid for anyone apart from video sharing websites.

    I find it humorous that you respond with license FUD to my open invitation to educate me on how I can make Theora work as good as H.264. Should I interpret your response to mean it simply can not perform as well as h264?

  • by 0100010001010011 (652467) on Sunday May 09, 2010 @12:01PM (#32147480)

    Is GSM a "standard"? This country didn't take a stand in GSM vs CDMA. (Go Capitalism!) However Europe DID, and made GSM a standard.

    If it 'worked' or was better, that's up to debate.

  • by larry bagina (561269) on Sunday May 09, 2010 @12:06PM (#32147520) Journal
    Congress could.

    Whereas H.264 ("The Standard") is a standard licensed under reasonable and non-discriminatory terms which promotes the science and useful arts.... bleh bleh bleh... any patent infringement claims against H.264 must be made known within 6 months of the passage of this law. Failure to make said patent infringement claims known within the specified time period shall prevent any future claims, actions, lawsuits, or other method of redress with respect to the implementation and/or use of the standard

  • Re:Fifth Amendment (Score:3, Insightful)

    by Jenming (37265) on Sunday May 09, 2010 @12:11PM (#32147560)

    shortening the term would not require compensation any more then prohibition required the compensation of alcohol manufacturer's.

  • by Vellmont (569020) on Sunday May 09, 2010 @12:14PM (#32147588) Homepage


    Is completely clueless trolling in the summary the new standard on /. now?

    It's not a summary, and it's not "trolling". The paragraph IS the article, and the links are merely poor background information. Though I do agree that there's no apparent connection between trademarks and patents.

    You might not agree with the article, and it's largely poorly written and poorly supported. But "trolling" isn't the same thing as a bad article. Honestly, when did "trolling" become just a poorly written article? If anything, I'd say directly attacking someones intellect is trolling.

    Given all that, I think the idea of legislating patents applied to industry standards is an interesting idea. It's likely problematic in many ways though. How do you stop people from trying to invalidate any patent by merely making it part of an "industry standard"? Can federal legislation even DO that kind of thing? (There are limits to what the federal government can do). Would it even matter, since standards such as HTML5 are international ones, not US only? Would such legislation have impacts on already existing trade agreements?

    The waters seem muddy enough that even if such an approach got traction, I have doubts it would be workable.

  • by Anonymous Coward on Sunday May 09, 2010 @12:22PM (#32147658)

    Why would this discussion be some silly argument over who is better, capitalism or socialism?

    There's plenty of cases though, of a government regulating a standard, and deciding it will be available. No great problem with the television industry for example.

  • Re:Fifth Amendment (Score:4, Insightful)

    by Adrian Lopez (2615) on Sunday May 09, 2010 @12:28PM (#32147708) Homepage

    This is the same reason why copyright terms cannot be shortened, even if you got a bill to do so past the Disney lobby.

    Nonsense. For one thing, you can shorten the term of new copyrights without affecting existing copyrights. For another thing, if congress can extend the term of existing copyrights as they did for Disney's latest copyright grab, I think it's only fair that they be allowed to shorten them as well.

  • by BlackBloq (702158) on Sunday May 09, 2010 @12:33PM (#32147734)
    There are no king makers for standards! They arise from a need in the industry and then they fill a gap. MPEG group didn't say ok all you use this or be fired! Who would care? The MPEG came out as the only format that was there and worked. Go to a trade show, the only computer playing motion video AT ALL back in the day was a computer playing Terminator 2 with a hardware MPEG card showing FULL SCREEN VHS quality! Back then everyone was like woaaaa! Be there and work, fill the need. Then you become a standard. Everything else is lawyer stuff.
  • by Blakey Rat (99501) on Sunday May 09, 2010 @12:37PM (#32147760)

    The difference between "trolling" and "bad article" is: is it purposefully stupid in order to get outraged replies? Or merely ignorantly stupid.

    Since the author here insists he's not stupid, personally, my first inclination would be to call this trolling as well.

  • by Mindcontrolled (1388007) on Sunday May 09, 2010 @12:47PM (#32147848)
    I called it a troll because it is very hard to lead a rational discussion on patent matters at the best of times. The article at issue here uses very loaded language from the beginning - e.g. the "government-created mess". This is designed to incite a flamefest, in my opinion.

    Regardless of the trolling-or-not-issue, the whole topic is half-arsed, not remotely thought through. The questions you are asking are good ones that aim at the heart of the problem. There is a deeper issue, though: What exactly *is* an industry standard for the purpose of this? Who defines it?
  • by zogger (617870) on Sunday May 09, 2010 @01:00PM (#32147938) Homepage Journal

    It's completely absurd. I've used an analogy before. Did typewriter manufacturers demand a fee for stuff authors wrote on their machines? They had patents on typewriters. There's your legal precedent, and it gets to the heart of promoting the arts and sciences. These software patents throw a ridiculous roadblock towards that goal.

    Independent and concerned folks should stage a mass protest, video each other at outdoor protest sites, swap one dollar with each other for instant copies of what they shoot, on those compact flash things or USB sticks or whatever you use, making the clips be "commercial" as well, then upload the videos all over right then, and challenge those absurd rules. It's called civil disobedience, and large numbers work to get obviously stupid laws changed. Not three guys, but an organized across the nation "day of stupid retarded video software patents challenge", thousands of people, something like that, something that would make the news all over and couldn't be ignored. They just did this a few weeks or so back with reefer laws, mass smoke ins.

    I don't do video myself, but seems like if this is really a concern to so many people, interested folks could take this idea and run with it, do a facebook thing, all that social networking jazz a lot of you folks do, pick a day and just do it, organize away, start the chatter, add comments to youtube vids to get the word out, drop comments on blogs of interest, whatever it takes.

    OK, I'll offer a date, June 5th upcoming, that's on a Saturday. That's almost a full month to get the word out, "Protect your Right to be Creative with the hardware you purchased day. End software patents. Copyright, yes, patents, NO".

  • by mangu (126918) on Sunday May 09, 2010 @01:10PM (#32148012)

    All patent-holders would need to be "justly compensated" for this taking of property.

    That's the problem with using loaded terms like "intellectual property". Patents are not "property". According to the Constitution which you mentioned (Section 8 - Powers of Congress):

    "The Congress shall have power ...
    To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"

    An "exclusive right" is not a property. Car analogy: if I park my car at a vacant spot, I have the exclusive right to that spot as long as parking regulations allow, but I do not have property rights on that spot of the street.

  • by ibsteve2u (1184603) on Sunday May 09, 2010 @02:01PM (#32148338)

    I'm not sure that industry can solve this mess that government created."

    I don't know about Australia, but if it has to do with protecting or accumulating wealth - the modern intent of patents - in America, then any associated government mess that has been created in the last 30 years was at the behest of, paid for, and crafted by industry.

    Hence, the average American's and the nation's interests are rarely represented. You only get "messes" when legislation is focused solely on the interests of a few.

  • by AnotherUsername (966110) * on Sunday May 09, 2010 @03:20PM (#32148760)
    Learn how to use punctuation. If you want anyone to take notice of what you have to say in a meaningful way, you must learn to use punctuation. There are no commas, apostrophes, or periods anywhere in your paragraph, although there are quotation marks for your expressed sarcasm.

    The fact that you are complaining about Obama shows that you are likely American. The fact that you do not seem to understand basic grammar is embarrassing. Perhaps before you try to enact sweeping change via Internet message boards, you should learn how to communicate properly.
  • Congress could.

    If Congress takes the essential H.264 patents from companies in MPEG-LA, these companies will likely plead the Fifth [wikipedia.org] and sue for their "just compensation".

  • by tambo (310170) on Sunday May 09, 2010 @06:22PM (#32149742)

    And submarine patents do exist; there's much FUD by MPEG-LA members being spread about the possibility of Vorbis infringing yet unknown patents.

    That's not a "submarine patent," which has a very specific meaning in this field.

    What you describe is just MPEG-LA spreading FUD. And the standard response here is: "patent app serial numbers or STFU." Either MPEG-LA can point specifically to the applications which (if they actually mature into patents) it believes are being infringed - or it can't, and its accusations of infringement are meritless. It's that simple.

    What we really need is compulsory licensing at some percentage of the per head sale price.

    Even looking past the obvious question ("How does this point relate at all to anything in this thread?")... compulsory licensing suggestions have a common problem: who establishes the pricing, and based on what data and guidelines?

    Usually, what people mean by these suggestions is: "Let's craft a body that's allowed to grant licenses to patented technologies for $cheap!" The problem with all such suggestions is that if you establish a body that (based on applicants' estimations) consistently underprices the value of those licenses, applicants will simply abandon the patent system - and keep their inventions as proprietary trade secrets. No more industry coalitions, no more industry standards like 802.11 and USB and HDMI... every company will make its own protocols, just like back in the 80's. Is that your notion of an ideal computing industry?

  • by Quixotic Raindrop (443129) on Sunday May 09, 2010 @06:40PM (#32149874) Journal
    The middle ground is to return patents to what they are supposed to cover: inventions of physical machines. Copyright and trademarks cover things like Process and Software, and they are the appropriate places to protect them.
  • Re:No. Just pay up (Score:3, Insightful)

    by westlake (615356) on Sunday May 09, 2010 @07:53PM (#32150326)

    Exactly. It's like creating furniture with a SawStop table saw and the patent holders expecting to get a cut of everything you make with it.
    You should buy the right to use the patented technology, and that should be the end of it.

    MPEG LA is only interested in the big green.

    2 cents a disk is chicken feed unless you are talking $1 million in sales.

    Your state of the art H.264 encoder is - for all practical purposes - free as in beer until you reach that level of success. Can you say the same for the SawStop?

  • by Anonymous Coward on Sunday May 09, 2010 @08:48PM (#32150652)

    "I am not stupid" is only ever falsely uttered, i.e. if you have to claim you're not stupid rather than proving it, you should probably just stop.

  • Re:No. Just pay up (Score:3, Insightful)

    by evilviper (135110) on Sunday May 09, 2010 @10:35PM (#32151188) Journal

    how would one convert a clear h.264 HD video to Theora and have it come out with the same quality.

    It's 100% impossible to convert a video into a lossy format and not lose quality. When the video was converted to H.264, quality was lost. When you convert it, AGAIN, to Theora, you will get all the quality loss and artifacts from H.264, and also all the quality loss and artifacts from Theora.

    For "big buck bunny" in particular, you can download the lossless video yourself, and try converting that into Theora and H.264 and see how each turns out. Converting from H.264 to Theora is unfair, and the quality would likely be just as bad if you converted from Theora to H.264.

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