A (small) lesson about patent FUD.

Steve Jobs, the MPEG LA and HTML5’s <video>.

On March 7, Google announced they reached an Agreement with MPEG-LA around patents that “may” cover the open video codec VP8.

Thanks to this agreement, the most serious concerns that people had about using VP8 and webM for their videos on the web are gone. (Well, almost, because Nokia(/Microsoft) claims to have patents infringed by VP8 still).

Monty from Xiph.Org, developer of free software and open video codecs like Theora is very happy about this announcement. Indeed, it shows that MPEG-LA has lost. They did not have anything serious to bring VP8 down.

Oh. Oh my. After a decade of the MPEG LA saying they were coming to destroy the FOSS codec movement, with none other than the late Steve Jobs himself chiming in, today the Licensing Authority announced what we already knew.

They got nothing.

But what should remain from this? I think there are some lessons to learn here for Free Software. Sure, MPEG-LA has lost. But who won? Not us, and surely not the Web.

The question is: how’s that possible that a group of patent holders who had nothing serious to stop adoption of webM and other open codecs like Theora managed to impose on us their patent-restricted codec?

Let’s go back a little. The whole saga starts from the HTML5 group. (Bear in mind that this effort started outside of the W3C, comprising mainly of browser-vendors including Apple and Microsoft.) I don’t have enough knowledge of the inside politics of this group. But what remains out of it is that one of the most discussed features of HTML5, the <video> element, is a failure.

Why HTML5 <video> has been a failure

Why’s that a failure? Because today, it seems that most of the time HTML5 videos are encoded solely using the restricted-by-patents AVC/H.264 format. That means that publication on the Web is now restricted by rules determined by a cartel of patent holders (The MPEG-LA has been under investigation by the US Department of Justice for anti-trust concerns since 2011.)

This is certainly not how the web was envisioned. The web was envisioned with freedom at its core. Just like Tim Berners-Lee didn’t have to ask anybody’s permission to make the Web work 22 years ago¹, nobody should have to ask anyone’s permission to publish something on the web.

Why HTML5 <video> is still a failure

Now the second attack against HTML5 <video> has come. We saw it coming, about a year ago. But nothing was done. It is only now that I see a reaction (BTW if you haven’t done yet, please sign now to stop Digital Restrictions Management (DRM) on the Web: defectivebydesign.org/no-drm-in-html5).

Make no mistake. These are concordant, and very important attacks. They will deeply change the Web if they succeed. Microsoft, Apple, Netflix and others want to control how one can make videos (through patents) and who can watch videos (through DRM).

The first part (patents) seems lost. We have to fight for the second part.

What we need: to weigh in the political process of shaping HTML5 and to fight FUD

Here I want to focus a little bit on how they achieved to control videos through patents and how this is related to what we’re witnessing with the proposal to include DRM in HTML.

These are some of the steps:

  1. Make a technical proposal to the HTML5 group.

    Oppose inclusion in the standard of Free Software and claim the reason is concerns around patents.

    In case opposition come from Free Software folks, claim there is no problem because your proposal can be included in hardware

  2. Spread FUD everywhere that Free Software implementations and technological alternatives are violating patents.²

    (Of course, hope that nobody sees how hypocrite you are, because the patent risks come from your own patents and from organisations like MPEG-LA, which you are a part of)

  3. Make vague threats of lawsuits and show your muscles.

    (I now regret having participated in this by publishing Steve Jobs’ answer to my open letter. I should have handled this more carefully and contacted other organsations like Xiph.Org… This could have been a nice opportunity to debunk FUD more efficiently.)

  4. Buy yourself time, continue spreading FUD

I think it’s time to realise that building web technologies is a process with political implications. They’re trying to change the web from a place where you’re free to express yourself without having to ask anybody’s permission or having to agree to a restricted-patent-license, into something where you cannot express freely without using proprietary technology and where DRM prevents you from doing legitimate things (like saving a private copy of online content, or watching a video using only Free Software, the only way to ensure your privacy).

Of course, people who are aware enough of these issues will still be able to publish using Free Software with webM and Theora, and the next open codecs. Surely, there will be ways to crack DRM.

But what about everyone else? Do we want to accept the Web as a fragmented place? No, we want to keep the Web as it is, universal.

IMHO, the only reason why things aren’t so bad is thanks to Mozilla. By building Firefox, maintaining an independent browser engine when everybody’s going WebKit, and getting involved in the whole HTML5 spec process, they’ve managed to hold back these attacks. But they haven’t succeeded entirely. How long before Mozilla suffers from these attacks and cannot be as competitive as other web browsers?

We all need each other here. And I think it’s time to bring some political weight to the HTML5 process to counterbalance this.

  1. Actually, TBL did have to ask someone’s permission: his employer, CERN. But it’s totally unrelated 😉

  2. Apple seems particularly good at this

Edit Source Link

In 2013: Enlarge your patentz!

For the twentieth-year in a row, IBM was granted the most patents by the USPTO. For the first time, Google entered the top 50, right before Apple with a difference of 15 granted patents.

Those who think 2012 was the year of all records regarding patents¹ might want to think again. There is a trend here.

But in 2013, it seems that the fight for abolition might happen right there.

  1. including the landmark $1 billion damages in Samsung v. Apple; though I have my doubts whether it will stand in appeal, considering how wrong the jury was.

Open Letter to Steve Jobs

update 16:00: Steve Jobs answers to my open letter, see below.

Steve Jobs pointing his finger

That's rude!

Dear Steve Jobs,

Having read your Thoughts on Flash, I could not agree with you more. Flash is not the Web, and I am glad Apple seizes the opportunity of open standards to build better products for their customers.

But I am not so sure about your definition of the word Open in general. I will not argue here that it is ironic you find the Apple Store more open than Flash. I will not complain either that you like Openness so much that when you use “Open Source” Software to build your Mac operating system, you keep all the openness for yourself and don’t give it to your customers, nor to the developers whose works have been very useful to you.

I figured that writing an open letter was an appropriate way to remind you of a couple of things that you may have forgotten — maybe in good faith — about open standards.

It is true that HTML5 is an emerging open standard, and I am glad that you adopted it (well, did you really have the choice anyway?). However I have to say I am impressed in the way you succeed in saying how Apple has been doing great with open standards against Flash… while explaining Flash videos is not a problem, because Apple has implemented another video codec: H.264.

May I remind you that H.264 is not an open standard? This video codec is covered by patents, and “vendors and commercial users of products which make use of H.264/AVC are expected to pay patent licensing royalties for the patented technology” (ref). This is why Mozilla Firefox and Opera have not adopted this video codec for their HTML5 implementation, and decided to chose Theora as a sustainable and open alternative.

Free Software Foundation Europe have been raising consensus and awareness on Open Standards for some years already. I am sure we would be happy to help Apple make the good decision. So, to begin with, here is the definition:

An Open Standard refers to a format or protocol that is

  1. subject to full public assessment and use without constraints in a manner equally available to all parties;
  2. without any components or extensions that have dependencies on formats or protocols that do not meet the definition of an Open Standard themselves;
  3. free from legal or technical clauses that limit its utilisation by any party or in any business model;
  4. managed and further developed independently of any single vendor in a process open to the equal participation of competitors and third parties;
  5. available in multiple complete implementations by competing vendors, or as a complete implementation equally available to all parties.

Hugo Roy
April 2010

Steve Jobs’ email (with sources)

From: Steve Jobs
To: Hugo Roy
Subject: Re:Open letter to Steve Jobs: Thoughts on Flash
Date 30/04/2010 15:21:17

All video codecs are covered by patents. A patent pool is being assembled to go after Theora and other “open source” codecs now. Unfortunately, just because something is open source, it doesn’t mean or guarantee that it doesn’t infringe on others patents. An open standard is different from being royalty free or open source.

Sent from my iPad

Since it was an open letter, I think I have the right to publish his answer.

ACTA: threats to Free Software

Today with the first public release of ACTA, the effects the international agreement will have on Free Software appear to be  dangerous for its development and its distribution. First, by extending infringements proceedings and criminal offences to a broad scope of “intellectual property” including software patents. Second, by destabilizing the most important means of distribution for Free Software, which relies on an open and neutral platform on which online services are not meant to control whether “intellectual property rights” (including patents) are infringed. Third, by strengthening the protection of Digital Restrictions Managements (DRMs) against Free Software and fair competition.

Earlier today, the European Commission’s Directorate-General for Trade published the first public version of the Anti-Counterfeiting Trade Agreement, aka ACTA (PDF). However this document does not give the details on the negotiations, which began secretly in October 2007. I will not speak here about the political damages ACTA inflicts to the respect of democracy, nor about the disastrous effects ACTA will have directly on free speech, privacy, and the internet ecosystem’s sustainability as an open, neutral and innovative platform.

Instead, I want to focus here on the direct and indirect threats ACTA represents for Free Software, on its development, its legal viability and on its business and trade related aspects.

First, let’s set things straight. ACTA is not just about counterfeiting, it is broader than copyright. The scope of ACTA is, as defined in the public release:

intellectual property refers to all categories of intellectual property that are the subject of Sections 1 through 7 of Part II of the Agreement on Trade-Related Aspects of Intellectual Property Rights.

This includes copyright, trademark, industrial design and patent. If this definition is clear, all along the text paragraphs refers sometimes only to copyright and trademark, and sometimes to a broader scope, depending on how the negotiations will evolve over time. In this case, we know that the threats to Free Software are multiple because of the software patents granted every year by the US Patent and Trademark Office (USPTO) and the licensing schemes tied with patents that are incompatible with Free Software (To know more about software patents in ACTA, read End Software Patents).

Second, ACTA is not a trade agreement. Whatever the EU negotiators claim, the fact is that ACTA goes beyond current legislations and aims at creating internationally harmonized legislations on how “intellectual property rights” should be enforced. This is one of the reason why ACTA is creating its own body (the Committee) with its own executives (the Secretariat), independently from the World Trade Organization within which international trade agreements should be negotiated, and independently from World Intellectual Property Organization within which international treaties dealing with copyright, trademark and patents are usually negotiated (and open to NGOs like FSFE). The threat to Free Software is that there is absolutely no safeguards as to how the principles of freedom and sharing software would be kept intact.

What ACTA does is creating civil enforcement procedures harming Free Software development and distribution. Indeed, this is the other side effect of the changes in judicial authorities and civil proceedings regarding “intellectual property rights.” Free Software is an important milestone of an open and neutral Internet, and the Internet itself is a core tool of how Free Software is developed (by allowing developers to contribute to code and create programs around the world) and how Free Software is distributed (with online services, including multiple protocols such as peer to peer protocols among others). All this system is threatened by ACTA with such measures and propositions as:

prevent infringing goods [infringing any intellectual property right, including patent] from entering the channels of commerce […]

injunction against intermediaries whose services are used by third party to infringe an intellectual property right […]

These measures create a risk for online service providers and web services, because it makes them responsible for infringements and so encourages them to monitor, filter, control and censor their services — which has always been proved to diminish the incentive for innovation, tinkering and hacking; possibilities required to develop Free Software. Also, ACTA

promotes the development of mutually supportive relationships between online services providers and right holders to deal effectively with patents, industrial design, trademark and copyright or related rights infringement which takes place by means of the Internet […]

Which itself is a danger to network neutrality because it creates more concentration between ISPs, operators and rights holders, but also it is a direct threat to Free Software because the major means of distribution are controlled, supportively by rights holders including software patents holders.

Above these procedures, ACTA goes where the EU Directive IPRED2 attempted to: criminal enforcement, which includes “Inciting, Aidind and Abetting”. Of course, this concerns “Technological Enforcement of Intellectual Property in the Digital Environment”, extending the scope of IPRED.

What’s more, Free Software itself, and not only the means of its distribution, is targeted:

These shall apply to:] […] the manufacture, importation, or circulation of a [technology], service, device, product, [component, or part thereof, that is: [marketed] or primarily designed or produced for the purpose of circumventing an effective technological measure; or that has only a limited commercially significant purpose or use other than circumventing an effective technological measure.]

Finally, ACTA endangers Free Software by protecting Digital Restrictions Management and proposing civil remedies against removing or altering DRMs, or

distribute, import for distribution, broadcast, communicate, or make available to the public copies of works, knowing that electronic rights management information has been removed or altered without authority

Not only ACTA is a direct and indrect threat to Free Software, it is also an important step backward to less freedom and towards a dogmatic approach of “intellectual property” that will harm the sharing of knowledge and the Free Software values, by

Promoting the culture of intellectual property […]

To support, developing countries efforts, for the implementation of the Agreement and the integration of anti-counterfeiting and anti-hacking actions in national development strategies.

(If you want to help, spread the word about ACTA and contribute to the comments of the public release).