[theora] Mutually assured minefields.

[Gregory Maxwell]

The specific standards process used to develop the MPEG codecs
creates patent minefields that royalty-free codecs don't generally
face. Because many knowledgeable people have heard of the problems
faced by these patent-soup standards, they may extrapolate these risk
to codecs developed under a different process where these problems
are less considerable. This is a mistake, and I'll explain why here.

Recently there have been a number of prominent statements along the
lines of "all video codecs are covered by patents" and "virtually
all codecs are based on patented technology".

These statements are carefully engineered FUD spread by the license
holders of competing formats in order to discourage the use of
unencumbered alternatives. They are careful to avoid naming WHO
owns these supposed patents or WHAT is actually patented, because
such specific statements would allow the victims of this FUD to
petition a court for a declaratory judgment of non-infringement.

This FUD is particularly effective because there _is_ a widespread
misconception that media codecs are a patent minefield to a greater
extent than other areas of software.

Certainly this is the case for the MPEG codecs, but it is not a
universal  truth. To understand why, you must understand a little
about the process  used to build these international standards.

The reason the MPEG formats are so thoroughly encumbered by patents
is that the process used to build the formats is designed to be
"blind" to patent considerations: all the participants have agreed
that any patents they hold will be licensed under "Reasonable
And Non-Discriminatory" terms, a  term of art which few normal
people would actually describe as all that reasonable or all that
non-discriminatory, as RAND often means "quite expensive". With only
that assurance in hand, they go about constructing their formats
through an extensively political tournament process where proposals
are made and encouraged to be combined.

So no effort is made to avoid patents, but it gets worse:

If you're a participant in this process, it is very important
that some of your patented technology make it into the result:
if it doesn't you'll end up having to pay the same royalties as
the rest of the world, but if it does you can cross-license your
patents with the other "winners" and completely avoid paying to
use the resulting format.

So even if you're not looking to make a profit from your
participation, you'll be sure to get some patents into the result
so that you don't have to _pay_ for the result of your own labors.

As a result these formats end up rife with inconsequential or
even detrimental patented techniques which could have _easily_
been avoided, as essential elements.

—— and this is the outcome when all of the parties
are playing by the rules. For an in-depth analysis of
the mess that patents are making of standardization, see:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1134000

It doesn't have to be this way. Most media coding patents are
exceptionally narrow, as it's much cheaper and easier to obtain
a  very narrow patent. The fact that a patent can be trivially
avoided— often by something as simple as changing the order of a
process— isn't a problem for patents designed to read on standards,
since the standard mandates doing it "just so".

By starting out with the premise that you want things to be
royalty-free and not merely RAND, you remove the incentive structure
that encourages the creation of minefields. By being cognizant of
the risk and sticking close to the known safe prior art, rather
than the willful patent entanglement of the MPEG process, the risk
of surprise claims by third parties is also reduced.

The problem of patents isn't eliminated— they are still a costly
burden on the developer of any standard, but the environment
surrounding the MPEG patents is simply not a good indication of
the real difficulty.

The process used by MPEG is ultimately counterproductive. By being
"blind", what they are actually doing is encouraging a kind of patent
cold war. At the end, even the inventors and fully paid-up licensees
of those formats end up in court—fallout from playing with these
dangerous toys.  This can only be avoided by rejecting the taint of
encumbered technology, and accepting the challenges and compromises
that come from doing so. Or, in other words, the only way to win is
not to play.