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Re: Alternative decision process in RTCWeb

2013-11-29 12:23:03
Hi,
I agree with the basic sentiment of Philip’s email.  However, in the (perhaps 
forlorn) hope to shed some light into the IPR situation, allow me to correct 
inline below some aspects of it that were painted in an overly broad brush.  I 
hope my characterization is reasonably impartial.  All aspects below were 
discussed on the rtcweb list ad nauseam, and in much greater detail.
Stephan

From: Phillip Hallam-Baker 
<hallam(_at_)gmail(_dot_)com<mailto:hallam(_at_)gmail(_dot_)com>>
Date: Thursday, 28 November, 2013 at 14:53
To: Dave Cridland 
<dave(_at_)cridland(_dot_)net<mailto:dave(_at_)cridland(_dot_)net>>
Cc: IETF Discussion 
<ietf(_at_)ietf(_dot_)org<mailto:ietf(_at_)ietf(_dot_)org>>, Dave Crocker 
<dcrocker(_at_)bbiw(_dot_)net<mailto:dcrocker(_at_)bbiw(_dot_)net>>, 
"rtcweb-chairs(_at_)tools(_dot_)ietf(_dot_)org<mailto:rtcweb-chairs(_at_)tools(_dot_)ietf(_dot_)org>"
 
<rtcweb-chairs(_at_)tools(_dot_)ietf(_dot_)org<mailto:rtcweb-chairs(_at_)tools(_dot_)ietf(_dot_)org>>
Subject: Re: Alternative decision process in RTCWeb




On Thu, Nov 28, 2013 at 10:04 AM, Dave Cridland 
<dave(_at_)cridland(_dot_)net<mailto:dave(_at_)cridland(_dot_)net>> wrote:
On Thu, Nov 28, 2013 at 2:40 PM, Dave Crocker 
<dhc(_at_)dcrocker(_dot_)net<mailto:dhc(_at_)dcrocker(_dot_)net>> wrote:
BTW, as distasteful as it might be, is there a reason that making /both/ MTI 
would not work?

[…]

The issues for vendors are litigation risk and cost.

If you are a commercial vendor with an existing H.264 license there is no cost 
and no litigation risk for using that codec but the licenses you have acquired 
are almost certainly specific to H.264. So using any other CODEC is likely to 
create a substantial liability risk.

StW: A commercial vendor with an obtained pool license and current on your 
reports and your bill has a license and insofar there is virtually no 
litigation risk from the 30 pool members.  I write “virtually no risk”, because 
fraudulent lawsuits are not exactly unheard of, and there is nothing one can do 
about those.  The cost is $0.00 or $0.20 or $0.10 per codec, depending on 
volume.  According to Cisco, even without a license of your own, the cost can 
be $0 if your product implements the download mechanism they offer.  Note that 
the definition of “codec” in the MPEG-LA agreements is hardware centric and 
difficult to interpret in a software environment.  So there is cost (although 
potentially not for you).
Even with an MPEG-LA license, there also is litigation risk from those 
rightholders who are not pool members, which is a not insignificant percentage. 
 However, the monetary damages that can reasonably be expected from licensing 
or litigation are, according to recent rulings, some of which are under appeal 
right now, quite low.  This is because H.264 and its patents were developed by 
a very broad community which agreed to license under RAND terms.  As there is 
not so much money to be made, the chance that a rightholder would litigate 
outside of a strategic context (smartphone wars, pool enforcement) is perhaps 
not overly high.  Of course, that is of little consequence once the 
multimillion $$$ bill from your lawyer rolls in.  H.264 essential patents have 
been litigated at least 4 times since 2003, sometimes as pool enforcement 
actions, and sometimes in the context of smartphone wars.  There are some 1200 
licensees of the H.264 pool, including mega companies and little guys one has 
never heard of.

In terms of patentable technologies, VP8 is considered by many (including 
myself) mostly a subset of H.264.  (It contains a few additional features over 
H.264 but allow me to ignore those here.)  Insofar, one can expect that a 
subset of the H.264 essential patents may also ready on VP8, in addition to a 
few VP8 specific patents.  As far as licensing goes, Google has agreed to 
compensate 11 rightholders (that also happen to be H.264 rightholders) an 
undisclosed amount, and obtained a license from them which they generously make 
available to us, along with a license under their own patents, and subject to 
certain conditions which most people consider bearable.  So I think it’s safe 
to assume that these rightholders and google are not going to litigate over 
VP8.  As VP8 was not developed in an organization under RAND IPR policy terms, 
there is no RAND safety net.  Anyone other but the 12 companies above could 
theoretically sue over a VP8 patent and demand sun/moon/stars and/or injunctive 
relief.  Nokia has announced that they are not willing to license patents they 
believe read on VP8, see here:   https://datatracker.ietf.org/ipr/2035/.  Nokia 
has also asserted allegedly VP8 essential patents against HTC in (at least) two 
distinct lawsuits in Germany and one ITC complaint.  One of the lawsuits is 
dismissed and under appeal and the second is stayed pending an invalidation 
procedure (something the German courts do only if they consider it likely that 
the patent is invalid as granted).  AFAIK, the ITC complaint is still in the 
procedural warm-up phase.  My personal take on these lawsuits is that they have 
to be seen in the greater context of the smartphone patent wars.  I may be 
wrong.   However, if I’m right, then there will probably be a settlement in the 
not too distant future, with terms unpublished, the lawsuits go away, and we 
would all be none the wiser. /StW

If you are an open source provider without a H.264 license the situation is 
very different.

StW: Yes, it is different.  H.264 implementations have been available in open 
source form, since at least 2006.  They have been part of major Linux 
distributions forever.  I’m following the litigation environment related to 
video codecs quite closely, and I have not heard of a single lawsuit against an 
open source developer or distributor regarding video codecs, including H.264.  
All that  is also true for VP8, except that VP8 is newer.  /StW

This is not going to be settled by a vote. I am not speaking for any of the 
parties but if I did have a dog in this fight I would have my corporate counsel 
write a letter to the WG stating that we are not going to be bound on the WG 
decision in this case.

StW: I don’t think that such a letter is needed.  IETF RFCs, or parts thereof, 
are regularly ignored by the implementer community, sometimes to the detriment 
and sometimes to the benefit of the Internet at large.  There’s no standard’s 
police that could enforce compliant implementations. /StW


We are talking about a decision that could result in a hundred million dollar 
lawsuit. The issue is not who is going to write code but who is likely to get 
hit with a suit.


--
Website: http://hallambaker.com/