A couple of years back, Techdirt wrote about Google's laudable attempt to open source its VP8 video codec, based around technologies it had acquired with the On2 company in 2009. That was not simply a matter of releasing the code, though, because of claims by some that VP8 infringed on their patents. MPEG-LA, the private company that manages the H.264 patent pool, even went so far as to put out a call for patents that might cover VP8, which in turn led to the US Justice Department investigating whether the move violated anti-trust law.

That investigation probably concentrated the minds at MPEG-LA, since in March of this year, it made the following announcement (pdf):

Google Inc. and MPEG LA, LLC announced today that they have entered into agreements granting Google a license to techniques that may be essential to VP8 and earlier-generation VPx video compression technologies under patents owned by 11 patent holders. The agreements also grant Google the right to sublicense those techniques to any user of VP8, whether the VP8 implementation is by Google or another entity. It further provides for sublicensing those VP8 techniques in one next-generation VPx video codec. As a result of the agreements, MPEG LA will discontinue its effort to form a VP8 patent pool.

Good news, but not the end of the story. Even though MPEG-LA had licensed technologies to Google, the big question was under what terms. Making VP8 available to users of free software was potentially a problem, since it is not possible in general for patented technologies to be licensed for use with open source programs: no per-copy fee can be charged, and necessary permissions must automatically be passed on with any copy that is made. In other words, for free software, licenses need to be not just royalty-free, but restriction-free. The concern was that the deal agreed between Google and MPEG-LA would preclude that.

Indeed, when Google finally published the draft version of its VP8 Patent Cross-license Agreement, some in the free and open source (FOSS) world found unusual elements that raised questions about its compatibility with standard FOSS licenses. This has prompted the Software Freedom Law Center -- one of the key points of reference for legal matters in the world of free software -- to offer the following comments addressing those concerns:

Critics focus on two provisions in particular: §2, which requires would-be licensees to explicitly accept the license terms, and §3, which limits the license's "field of use" to implementations of VP8. Both would be unacceptable in a FOSS copyright license on software, but in the context of this particular free-standing third-party patent license, neither provision interferes with FOSS licensing or the freedoms it protects.

Should the developers of a FOSS VP8 implementation accept this license, they would not be required to pass on any restrictions limiting users' rights to copy, modify, and redistribute free programs. Users would be neither required to accept the patent license nor restricted from adding new capabilities to the software. They would have the same rights as they would if the developers had never accepted the patent license: those granted by the software's FOSS license.

If this patent license interfered with the freedoms guaranteed to users by FOSS licenses, it would be incompatible with the OSD [OPen Software Definition] and FSD [Free Software Definition]. Because the patent license does not restrict those freedoms, but rather affords some new, limited protections to users and developers within the field of use, it improves on the current situation. Without this license, the patent holders would be in a position to threaten those users and developers as well as others.

Of course, that underlines that the real problem here is that holders of even vaguely-relevant patents might band together to threaten to sue the creators and users of new codecs, and thus act as a brake on innovation. Although the proposed Google license is a clever hack around that, what we really we need is a thoroughgoing revision of the system that allows such anti-competitive patent pools to be created at all.

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This is quite a surprise. We'd already covered how MPEG-LA, the private company that has set up patent pools around web video, had announced its intention to set up a patent pool focused on the patents that holders believe are infringed upon by Google's VP8/WebM video standard. This definitely seemed like a typical shakedown situation, with one company basically asking a bunch of others to team up to demand a bunch of cash from Google.

What's surprising, however, is that the US Justice Department is apparently jumping into this particular battle, and investigating if MPEG-LA's response violates antitrust law. Apparently, the Justice Department (which is not exactly known as being a Google supporter...) is questioning whether or not this move by MPEG-LA and its members represents an attempt to stifle competition in the marketplace. Of course, the answer seems to be yes, but part of that is the very nature of patents. They are, by definition, a monopoly right. So if they want to stop monopoly abuse from stifling competition, perhaps the government should stop handing out so many monopolies.

Right after Google announced that it was "freeing" up its VP8 video codec under the WebM name, in an effort to get away from the heavily patented H.264 standard, MPEG-LA, the private company that manages the H.264 patent pool and has done some patent trolling at times, announced that it was planning to set up a patent pool around VP8 insisting that it simply wasn't possible that there could be a web video standard that wasn't patented (and wasn't paying MPEG-LA, I guess).

That was back in May, and it's taken until February, but MPEG-LA has officially put out a call for patents that cover VP8. That's a pretty clear declaration of war. It's also fairly obnoxious. What sort of organization blatantly says "Company X has released a cool technology to the world, and we're going to find any and all patents that will destroy that?" What an incredibly anti-innovation stance.

That said, I do wonder why it took so long between announcing the original plans and making this call. Perhaps it's discovered that it wasn't quite as easy as they had hoped to find patents that cover VP8. For its part, Google insists it's committed to fighting to keep V8 patent-free, and hopefully it stands by that commitment.