[Advocacy] persuading mobile phone manufacturers to implement Vorbis support

[Tor-Einar Jarnbjo]

Matthew Flaschen schrieb:
> This is a detail that doesn't need to be in the press release.
>
>   
As I asked in my first response to this discussion: Is it necessary at 
all to mention all the negative sides about MP3 (and even exaggerate a 
bit) to promote Vorbis?
> True, and IANAL, but I think this is unlikely for a few reasons.
>   
Seeing how companies more and more tend to abuse patents to run off with 
easy money. Your arguments follow common sense, no doubt about that, but 
seeing how e.g. Lucent-Alcatel's claims against Microsoft are accepted 
by several judicial instances, I find it hard to find anything unlikely 
anymore, even if the trial is still ongoing (isn't it?).
> 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)
>   
I believe that several representatives from Xiph have clearly stated, 
that even if they didn't find any infringements during their research, 
doesn't mean that there aren't any. I even believe that Thomson was in 
good faith, believing that they were in control of all relevant patents 
when selling rights to use the MP3 format and I don't see why Microsoft 
should have expected anything else either. Nevertheless, at least a few 
court instances found it ok to let Alcatel-Lucent charge them 1.52 
billion US$ for violating one of their patents.
> 2. It is bad publicity to actually sue (as opposed to make vague
> threats) the FOSS community this way.
>   
Sure, but if I had a paper in my back pocket with the option to give me 
1.52 billion dollar, I think I might have considered accepting some bad 
publicity as a side effect for making use of that option.
> 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.
>   
And Microsoft doesn't?
> 4. Knowingly waiting until Vorbis becomes popular before suing could be
> a laches (http://en.wikipedia.org/wiki/Laches_%28equity%29) violation
>   
Perhaps, but it worked for Thomson as they went against the Lame 
developers and it worked for Lucent-Alcatel now, as they wipped out a 14 
years old patent and sued Microsoft.
>> 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.
>   
Why not?
>> 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.
The two patents I mentioned were just examples and for sure not the only 
ones, which might be relevant. What I am trying to say is that noone for 
sure can claim that Vorbis is not violating any patents and seeing how 
patent disputes currently seem to become more and more popular, I find 
it very doubtful to use unclear patenting issues around MP3 as an 
argument to promote Vorbis. But anyway, 6 months ago I would have found 
it reasonable for a company not being sure about the legal status of 
Vorbis to opt for MP3 instead, believing that paying royalties to 
Thomson for its usage would secure them against patent ifringement claims.

Tor