[theora] Theora patent question

Gregory Maxwell gmaxwell at gmail.com
Sat Oct 10 12:30:46 PDT 2009

On Sat, Oct 10, 2009 at 2:28 PM, Shayne Wissler <wissler at gmail.com> wrote:
> open-source nature of it, that the profits aren't centralized, and
> therefore there is no single point  of attack that a patent troll
> could wage.

You've asserted this several times now. I do not believe that it is a
reasonable position.

I wrote a long reply to your message last night but left it on hold
for copyediting by the light of day. Considering the subsequent
replies it seems that you've already chosen your position and aren't
actually interested in a discussion, so I guess I will not bother.

But since you keep asserting this point, I might as well send the part
that refutes it:

I'm not sure why you believe "not one but many infringers" confers any
immunity at all.

There is no obligation to assert in patent law: a holder is free to
pick and choose whom he goes after.

Perhaps you misspoke and intended to say "many infringers all of them
small", but this is clearly not applicable to many pieces of software
(such as freetype) as they do have very larger users too. Even if it
were the case, it's not clear that it would confer much benefit
particularly against the more trollish patent holders:  They can
employ a bunch of lawyers and use the differential cost of legal
support to intimidate small entities into settling rather than
fighting it out.

Your assertion that major packages are being widely used with known
infringements is something that many parties (e.g. the folks at
RedHat) would disagree violently with, even privately and off the
record.  It's a common practice for distributors to disable portions
of packages which are known to infringe. (Freetype is a classic
example here)

The reasonable alternatives to Theora (except Dirac) are all known to
infringe actively enforced patents. Theora is not known to infringe
and a non-trivial effort, including a mulititude of compromises, has
been made to avoid infringement.  Of course, as is the case with all
other engineering works some unknown issue may exist, which is why no
one provides worthwhile indemnity against general patent claims in any
software field and which is why fully paid up licensees of the MPEG
codecs have lost patent litigation over the licensed codecs.

What provides protection for Theora is: (in no particular order)
(1) Active avoidance of the well known and/or aggressively enforced codec IPR.
(2) The preference for older techniques and with a strong prior
art-history needed for (1) also provides some protection against
unknown patents.
(3) Theora and or VP3 have been shipped by a multitude of
deep-pocketed entities (IBM; RedHat; Google; Apple[1]; Mozilla; etc)
who would make much better litigation targets than you likely would.
At least some of these have done their own reviews and decided to go
(4) The dynamics of patent enforcement discourage long-shot
prosecution for patents that royalties are being collected on from
other uses due to the risk of claim invalidation.

[1] With Apple's past anti-theora fud it may be easy to miss the fact
that they have continuously distributed the technology for a very long
time: http://www.apple.com/br/quicktime/resources/components.html

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