Don't Bogart That MPEG Decoder
Lawyers vs. Open Source Developers
By Trevor Marshall
February 05, 2001
Last year, I tested a number of MPEG-2 encoders, and found that Tsunami MPEG, written by Hiroyuki Hori, was almost as good as the best of the commercial encoders and offered better configurability.
In August, Hori-san put out a new version, TMPG12beta(a), which placed the performance of this freeware product right up to the level of the best commercial products.
But recently, Hori-san has had to curtail his MPEG-2 development after receiving a threatening letter from an attorney for the industry group called "MPEG LA," which administers patents related to MPEG-2 compression technology. The MPEG-2 functionality has been disabled in recent distributions of Hori-san's software. Even though copies of the earlier software are, of course, scattered all over the Web, it is a tragedy that one of the world's most brilliant minds has been side-tracked by fear of legal action.
Just last week, Project Mayo released the first open source for the DivX video format. Gone from the specifications was any mention of the codec's MPEG-4 roots. The Project Mayo website carries a lengthy disclaimer:
"The video technology space is thoroughly covered by patents, many of which overlap or conflict. As a consequence, it is unlikely that any video technology will be created any time soon that is wholly "free."
Hori-san did not respond to my request for information about the legal letters to him, and although I was called by the PR agency for Project Mayo, questions about the licensing issue brought a crisp "no comment."
I had previously reported (in my September column) on how Microsoft's lawyers had forced Avery Lee to remove the handling of ASF media files from his superb VirtualDub software.
Clearly, there is a disconnect between the interests of the video industry and the interests of the open software developers.
It is critical for us all that a compromise be found that will not curtail the enthusiasm of the open source community. It is in the industry's best interest to learn how to work alongside the open source developers, and it is in the best interests of the developers to get the lawyers off their backs.
I Call MPEG LA And Speak With The Lawyer(s)
"A Patent is a right to exclude" explains Larry Horn, "it establishes a limited monopoly." Larry is the vice president of licensing for MPEG LA (effectively, "the MPEG Licensing Authority").
An ominous statement indeed, but not uttered with a view to exclude anyone in the open source community. It was uttered with the logical and studied mindset of a good lawyer.
MPEG LA's website explains:
"MPEG LA was established to assure the interoperability and implementation of digital video by providing fair, reasonable, nondiscriminatory access to worldwide patent rights that are essential for the MPEG-2 video and systems standard. Our MPEG-2 Patent Portfolio License makes worldwide MPEG-2 essential patent rights available to all users on the same terms at fixed rates under a single license. Companies that make MPEG-2 products need the essential patent rights the License provides; it is the easiest, most cost-effective way to obtain them.
MPEG LA has negotiated with each of the 17 companies holding patents, which cover different parts of the video-compression task. MPEG LA does make it much easier for the video industry to ensure that they are in full compliance with all applicable patents. Without the licensing authority, contracts would have to be struck with each of the 17 companies individually. Clearly, MPEG LA cannot be described a purely predatory organization.
The license fee charged by MPEG LA for each individual decoder or encoder is only $4, a quite reasonable fee, and almost "in the noise" for any commercial operation making DVD players or TV set-top boxes.
As Larry points out, "the problem is with the counting" of these license fees. It is very hard to count the users of freeware software products.
That is why MPEG LA sued Compaq, Apple, Dell, and Hewlett Packard last November.
Compaq sells computers with DVD drives and DVD (MPEG-2) software that, apparently, is not licensed. A royalty is due on the product being sold, and according to Larry, "the end of the chain has to be able to count it."
But, with open source software, it is difficult to determine who is at the end of the chain.
It would seem to me that one easy way of "counting" the royalties would be for Microsoft, Red Hat (et al), and Apple, to apply the surcharge to the cost of their operating systems. Clearly, that isn't going to happen any time soon. Microsoft ships an MPEG-4 decoder with its Windows Media SDK. Many of the compression concepts used in that encoder have already been patented in earlier MPEG-2 implementations. But Microsoft is not beating down the doors of MPEG LA to cover its product with a clean legal veneer.
Larry said several other PC software manufacturers have also failed to respond to MPEG LA's "invitation" to license its MPEG products.
So where does this leave the open source authors? High and dry, in my opinion.
MPEG LA most certainly is beating down the developers' doors with rhetoric, if not with lawsuits. You see, there is a fundamental difference between the current corporate mindset and that of the open software developer. The latter is typically a programmer with little or no legal expertise who just wants to put his/her head down and create code. A legal letter that sounds like the end of the world to a software developer is just daily routine for Larry.
The Dilemma
MPEG LA is required by law to issue very stern enforcement notices to everybody who appears to be writing code using the intellectual property that MPEG LA's licensor's have patented. If Larry didn't issue these notices then he would undermine the legal strength of his licensor's patent portfolios. On the other hand, "I'm not interested in any d**n patents" is the response I would expect to have gotten from the developer community had they not been scared speechless by Larry's "stern enforcement notices."
A Possible Solution
MPEG LA and other patent holders (like Microsoft), have to realize that the open source community is working toward the ultimate benefit of society at large. It might be difficult for Larry to "count" freeware packages, but neither is it in the best interests of the industry to cross swords with the whole of the open source community.
If MPEG LA provided some way for me to pay my $4 I would freely do so. Its website, after all, is well set out and could easily link to an e-commerce subcontractor. MPEG LA has to understand that the genie is out of the lamp and cannot be put back. The only issue is whether future development will be forced underground, possibly compromising the validity ("novelty") of some of its licensor's property. At the same time, the open source community has to get a better understanding of what has been happening here, and band together to work out an equitable solution.
