[Advocacy] persuading mobile phone manufacturers to implement Vorbis support

[Matthew Flaschen]

Tor-Einar Jarnbjo wrote:
>> You do if you generate revenue through that distribution
>> (http://mp3licensing.com/royalty/emd.html).  But where does the FSF say
>> that?
>>   
> They write in their press release: "... any time a distributor sells or
> gives away music encoded as an MP3, they are responsible for paying a
> fee to the owners of the MP3 patents." It's difficult to interpret it
> any other way than sell = "generate revenue" and give avay = "not
> generating revenue".

I'm CCing this to the PlayOgg list.  I hope it is corrected (only
revenue-generating distribution requires a royalty, so "or gives away"
should be removed).

 You also only have to pay license fees if you
> generate a revenue of more than US$ 100,000/year.

This is a detail that doesn't need to be in the press release.

>> Maybe.  But if that does happen (if the claim can not be defeated), I
>> will move on to a new format, and I think the FSF will do the same.
>>   
> But if the claim is ruled valid, it is too late for whoever has been sued.

True, and IANAL, but I think this is unlikely for a few reasons.

1. I believe Xiph when they say they conducted a thorough patent search
and found no infringements (also, the foundation could be liable if this
is fraudulent)

2. It is bad publicity to actually sue (as opposed to make vague
threats) the FOSS community this way.

3. The FOSS community has just as many (if not more) well-paid lawyers
that could fight such a claim.  Think of all the major companies (not to
mention SFLC) that distribute Vorbis software without paying royalty fees.

4. Knowingly waiting until Vorbis becomes popular before suing could be
a laches (http://en.wikipedia.org/wiki/Laches_%28equity%29) violation

> MP3, seen as a file format, is as such not patented, but many distinct 
> intermediate steps performed by the encoder and decoder are patented as specific technologies.

This is a valid distinction, but not meaningful in practice.

> If you compare MP3 and Vorbis, many of these steps are identical or at least
> very similar

Well, some of these steps are obviously not patented (and some are
expired).  And very similar is not always good enough.  I can't comment
on the specific patent you mentioned.

Matthew Flaschen