It was only a matter of time. Nero AG, a German company responsible for the popular Nero Burning software suite that has ballooned to such incredible bloatware that it now includes integrated transcoding and a media player. Of course when video is involved that means MPEG LA is involved. MPEG LA is the licensing consortium responsible for the MPEG2 and MPEG 4 H.264 codec’s patent pools. Nero is alleging anti-trust and patent abuse violations. With MPEG LA now being assaulted on multiple fronts with the release of WebM by Google, we could be seeing the beginning of a full scale nuclear war between the major software players that, just like nuclear war in the real world, can only end in mutual destruction.
Last week, Google kicked of Google IO, like Mac’s WWDC except with less black mock turtleneck action. Android 2.2 Froyo stole the show, but also in the headlines was a little reveal that they were launching webM as a new, open source, royalty free codec that would enable the world to get out from under the screws of the MPEG LA. This sent software patent geeks into a tizzy. Both of us.
Microsoft set off on this path last year, and it only ended in heartbreak. The VC-1 based on WM9 ended up being read on by the H.264 pool of MPEG LA. This obviously left several internet pundits and instant web experts talking about how webM would end the same way. Maybe it will, maybe it won’t. It’s way too early to say. One thing I can say is that no matter how it ends, MPEG LA should be scared.
Patents are a fickle thing. Hopefully anyone reading this has a basic understanding of what a patent is, and I think most do. The problem is that most don’t understand what a patent isn’t. A patent is not a monopoly right nor a license to practice a specific technology or make a specific product. Patents are only a right to exclude. More specifically patent’s are a right to exclude a specific set of ‘claims.’ The claims are laid out at the time of filing (mostly).
One can’t claim a whole keyboard, they can claim aspects of a keyboard like having a convex key surface to cup your fingertips. Obviously the more mature or technical the area the more obscure and abstract the patent claims are going to be. This is a big deal in the video encoding space where there are many different methods and a lot of highly specific math going on. The current H.264 pool is 1000+ patents. These likely range from analysis of the source image to encoding schemes to disk storage methods.
It’s relatively easy for trained patent council to examine a known patent and determine infringement. This has it’s problems, but it’s not nearly as hard as searching the roughly 3 million valid patents to find covered technologies. The patent system is so vast and not written to say “I claim technology necessary for the MPEG 4 H.264 codec.”
This brings us to MPEG LA’s first problem. There are only so many snakes in the grass. There will come a point where someone will eventually write a codec that isn’t encumbered by a member of the pool. Microsoft, a deep pocketed entity smoked out a lot of them when they released VC-1. If you owned a video compression patent necessary for the system, you would come forward. Who better to force into a license than Microsoft ($223B company on today’s stock price)? Now with less unknowns out there Google is going to try their hand. There may be a few more who come out. If there are only a few, Google could just buy them off. If not, then we will wait and see if someone tries again. But there will come a point where we get a patent free video codec.
Also, the interesting thing of this is the attention and litigation we are seeing. Nero is taking the eastern front and squeezing MPEG LA. The idea that they are controlling such a huge swath of the market by creating a patent thicket is no secret to software developers but may get the attention of the Federal Circuit or even the senate judiciary. With the anticipated Bilski decision due any day from SCOTUS we may see this behavior influence or be influenced by that decision.