[vorbis] Winamp5

[noprivacy at earthlink.net]

From: "Cameron Patrick" <cameron at patrick.wattle.id.au>
>
> | And let's be blunt here.... Xiph can claim all they want that it's
patent
> | free but in the commercial world, claims like that don't mean anything.
> | Somebody is going to have to put in some big bucks to do extensive
> | investigation to make sure they wont be likely to get sued.  Hopefully
AOL
> | is doing that because once they do, then other commercial products might
> | decide to include vorbis encoding.
>
> Patents don't work like that, sorry.  My understanding is that almost
> every non-trivial piece of code is highly likely to violate a software

It's true that a lot of code & algorithms are covered.  But that's not
really relevant.

If a patent holder wants to sue, then they can do so.

A patent search & investigation can put major limits on how much money can
be at stake.

There are indeed always submarine patents and patents over looked, and so
on.  But if you want to have any chance at all in court, then you are going
to have to investigate any suspicious code.  Standing in court saying you
didn't know and didn't even check isn't going to help you any.

And vorbis falls firmly into the 'suspicious'.  That doesn't mean it is
guilty, but because it is unknown code, because Xiph has been so tight
lipped about what kind of patent investigation they did, and so on, that
firmly puts it into the 'suspicious' category for a major company.  They
just plain don't know.

That's one of the reasons they prefer to license code.  It protects them if
there are some hidden or unknown patents involved.  With Vorbis, there is no
safety net for them because Xiph basically disclaims all legal
responsibility if you actually use it.  The company using it (AOL etc.) end
up taking the responsibility.

Then throw in some of these other patent things lately (streaming patents,
several patents against microsfts media player, the microsoft browser ebolas
patent, SCO vs. IBM & Linux, and on and on and on), it's not a good time for
a major company to just blindy trust some open source development project
that wont even publicly explain why they believe that no patents apply to
their code.

That's enough to make a major company like AOL / Time Warner very nervous.
You should be glad they are willing to investigate it and include it if it
turns up clean!

> patent in the current situation.  Some claim that the best approach for
> software developers is to ignore any patents that aren't being actively
> enforced, simply because there are so many overly broad software patents

No LARGE COMPANY is going to have an attitude like that.

Only an individual or some small 'mom & pop' business.

> around, many of which the owners don't really care about.  Now Vorbis is
> unlikely to be covered by a patent which /is/ being actively enforced,
> as if it was, we'd know about it by know (on account of its owner

Not necessarily.  Take a look at mpc.  Frank has several times that's pretty
sure it is covered by other patents, but yet nobody has sued him or even
stepped up and said "yes/no our patent doesn't cover your idea".  It's a
small insignificant project that isn't worth their time.

And look at mp3 encoder LAME.  It's well known it is covered by patents.
But because LAME is done by individuals and hobbiests, nobody cares.  But
just try to include it in a major program without paying royalties and see
how fast you get a letter from some lawyers!

A small open source project by hobbiests is one thing.  Being actively
distributed by a company is another thing.  And being done by a very large
company with deep pockets is something else altogether.

For a big company like AOL, Xiph's word isn't enough.  Especially since it's
well known how casually a preliminary patent search (or whatever it's
called) was done.  It was just enough to protect Xiph from major lawsuits
and damages, but not enough to protect any company that might use it.

> politely telling Xiph.org to pay up).  Furthermore, large companies like
> AOL can generally protect themselves reasonably well from patent
> lawsuits, simply because they themselves have many patents which they
> can start bandying about in retaliation ("You say we're violating your
> patent there?  Well let's see how many patents of /ours/ you're using...
> Perhaps we should forget about this whole nasty business.")

Counter-threats like that can be used to discourage lawsuits, yes.  But not
always.  Sometimes it makes it worse because the patent holder than can tell
the court they were threatened.

And some companies aren't intimidated.  It just makes them more eager.

And some companies may not care at all because AOL simply isn't a threat to
them in any form.  Maybe this patent just happens to be the only thing
they've got, in which case AOL threats would mean absolutely nothing to
them.

You don't build a business on a foundation like that.

> I think that any claims that Vorbis is patent-encumbered should be
> treated as FUD until they are substantiated.

Nobody is saying that it *is* patent encumbered.

People are saying there's no proof that it's not.  (Or more accurately, that
there hasn't been enough investigation for companies to be reasonably sure
they aren't going to get sued if they include the encoder.)

I doubt that it is covered by any patents.  (Or at most, none that are
likely to cause any major problems.)  But a large company like AOL isn't
going to take my word.  Or yours.  Or Monty's.  Or even Xiph's, unless they
have significant documentation to back it up and are willing to show it.

<p>And that does seem to be why people involved (or 'in the know') are saying
AOL had winamp pull the vorbis encoding (but not decoding, mind you!)
Winamp developers already had the encoder written and had been distributing
it.  They wouldn't have stopped unless somebody way above them told them to
pull it.

<p>Frankly, you should be glad that it appears that AOL / Time Warner lawyers
are looking at Vorbis!!!  If they are, and they go ahead and include it in
Winamp, then that means they are reasonably certain it's clean enough to
use.  And that means other companies are likely to include vorbis encoding
too.

<p><p>--- >8 ----
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