Patent cloud looms over Google Web video plan

Digital video patent holders have not made a direct legal threat to the royalty-free terms under which Google shares VP8--but there are some grounds for concern.

Stephen Shankland principal writer
Stephen Shankland has been a reporter at CNET since 1998 and writes about processors, digital photography, AI, quantum computing, computer science, materials science, supercomputers, drones, browsers, 3D printing, USB, and new computing technology in general. He has a soft spot in his heart for standards groups and I/O interfaces. His first big scoop was about radioactive cat poop.
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Stephen Shankland
8 min read

In mid-May, Google launched an ambitious effort called WebM to make it as easy and cheap to put video on the Web as it is to put photos there today.

At the heart of WebM is Google's new royalty-free, open-source technology called VP8 that combines modern streaming-video features with a price tag of zero. But almost immediately after Google allies made their jubilant statements, a more sober question arose: does Google's gift actually come with strings attached?

A video patent licensing group called MPEG LA is publicly questioning VP8's patent pedigree and raising the prospect that those using VP8 might have to license patents from parties besides Google to use it.

MPEG LA's actions could significantly curtail both VP8's use and Google's hopes for it. The history of digital video shows MPEG LA's question should be taken seriously.

But Google lined up a strong list of VP8 and WebM allies, many of them with experience in the minefield that is the computing industry's patent landscape. One of them with a lot on the line is Mozilla, whose mission is to promote an open Web in part through its open-source Firefox browser. WebM support is now being built into Firefox as well as into Opera and Google's Chrome.

"Right now we think that it's totally fine to ship, or we wouldn't ship it," said Mozilla Chief Executive John Lilly. "We're really confident in our ability to ship this free of encumbrances." The VP8 patent situation is no different from the patent challenges that face any computing innovation, from search to social networking to user interfaces to browsers, he added.

For now, though, the only thing assured about WebM's intellectual-property purity is that there will be a considerable period of uncertainty as the industry stews over the matter. If MPEG LA decides to go ahead with a VP8 patent pool, for example, assembling the patents typically takes between 6 and 24 months.

MPEG LA raises patent question
MPEG LA is the licensing authority originally established to let companies purchase rights to MPEG (Moving Picture Experts Group) video encoding technology, or codecs. Today, MPEG LA licenses a pool of more than 1,000 patents from numerous companies for use of VP8's prime video-encoding competitor, H.264.

The cloud over VP8 came in the form of a statement that MPEG LA is considering offering a VP8 patent pool. MPEG LA Chief Executive Larry Horn doesn't have a VP8 patent pool to sell, for now at least, but he has a sales pitch: the removal of the financial uncertainty created by the prospect of a patent infringement suit.

"Google has the right to disclaim royalties for its own technologies, if any, but it doesn't have the right to disclaim them without appropriate permissions for technologies owned by others, or otherwise contribute to the infringement of those technologies," Horn said. "To the extent VP8 includes technology owned by others (or Google as well), and that that technology is not royalty-free, then a pool license, which removes uncertainties regarding patent rights and royalties by making that technology widely available on the same terms to everyone, would be beneficial to the market, including those who wish to promote it."

The organization didn't go as far as declaring that VP8 uses patented technology from others besides Google, but it did say, "we assume virtually all codecs are based on patented technology...MPEG LA doesn't favor one codec technology over another; we are like a convenience store that offers patent licenses for any number of codecs as a service to the market."

Patent pool repercussions
For those accustomed to paying royalties for video codecs used in multimedia chips, Blu-ray players, and encoding software, a VP8 patent pool would be nothing out of the ordinary. But Google didn't set out to reinforce the status quo with VP8 and WebM.

Google got rights to VP8 when it acquired On2 Technologies for $124.6 million in February. The other component to WebM, a royalty-free audio codec called Vorbis, came from the Xiph Foundation.

Many companies want to make money off the underlying technology of digital video, but Google wants to make money off a vibrant Internet, and it wants to see today's barriers removed.

"A key factor in the web's success is that its core technologies such as HTML, HTTP, TCP/IP, etc. are open and freely implementable," Jeremy Doig, engineering director of video, and Mike Jazayeri, group product manager for Google, said in a blog post. "Though video is also now core to the web experience, there is unfortunately no open and free video format that is on par with the leading commercial choices. To that end, we are excited to introduce WebM, a broadly backed community effort to develop a world-class media format for the open Web."

Sundar Pichai, Google's vice president of product management, said, "Video is one of the most important forms of communication on the Web. It's really important for the Web to have at least one alternative which is high quality and open...We are very, very committed to this."

VP8 is efficient and adaptable to varying network capacity and computing horsepower, Pichai said, which is important given the billions of videos viewed on YouTube. And it can be optimized for mobile devices, with hardware-assisted decoding that's important for good performance and battery life.

Due diligence?
Though Google released an abundance of information about VP8, and many partners endorsed or agreed to support the technology, mentions of the patent situation were conspicuously absent. The closest came in browser maker Opera Software's WebM endorsement:

"The Web has always been open and freely-usable; Tim didn't patent HTML, I didn't patent CSS, and Brendan didn't patent JavaScript," said Opera Chief Technology Officer Hakon Wium Lee. He was referring to three seminal Web technologies: Hypertext Markup Language from Tim Berners-Lee, Cascading Style Sheets for formatting, and JavaScript Web page programming language from Brendan Eich. "The big news today is that WebM will join the list of open and freely usable Web formats, and video will finally become a first-class citizen of the Web. This is a big deal, and the day will be remembered in the history of the Web."

Google must have analyzed the VP8 asset it bought for so much money and undertaken a significant road show to sign up so many WebM allies in time for its technology launch. But the company won't comment on what legal conclusions it reached about VP8 or what assurances it made to WebM partners. This was Google's sole statement regarding the VP8 patent situation: "While it is impossible to guarantee that any product will be free from claims of patent infringement, we can state that we are comfortable shipping VP8 in our own products."

Asked about any assurances Opera may have from Google and any results of its own patent examination, Opera declined to share detail. "We follow industry practice with regard to handling patent-related issues, and are not able to comment on such matters in the media. Furthermore, we are not able to comment on our relationship with other companies, due to our confidentiality obligations," the company said.

Sorenson Media, which announced that its video-encoding software supported VP8 the day Google released it, wouldn't comment on whether Google offered any indemnification against patent litigation. But CEO Peter Csathy presented an unconcerned face: "On2 had been in the proprietary codec game for years, including VP6, VP7 and VP8. I am not aware of any patent suits against On2," he said. "Sorenson Media has licensed On2 codecs for years, so we had no reason to doubt that VP8 is clear of any patent issues prior to implementation."

Another notable partner that committed to VP8 support is Adobe Systems, whose Flash Player plug-in today is widely used to watch H.264 video. Adobe will build VP8 into a new version of Flash Player and distribute it to a billion people within a year, said CTO Kevin Lynch. That support and the fact that Google is streaming all new YouTube videos with VP8 helps overcome the hurdles that early-stage technology often faces.

Mozilla's Lilly observed that MPEG LA is in the business of licensing video patents.

"I think the statements from MPEG LA have been designed to increase uncertainty, to freeze the market a little bit rather than to make the market more certain," Lilly said. "For (MPEG LA's Horn) to say we need market certainty and then raise comments like that is a totally counterproductive stance."

There's no such thing as zero risk, though. Even if a party licenses a patent pool from MPEG LA, that doesn't provide complete protection against legal attack. Here's the official position:

No, MPEG LA does not provide any indemnifications. Although our goal is to include as many essential patents as possible for the convenience of licensees, participation by licensors in the license is purely voluntary and MPEG LA specifically provides no assurance that the AVC/H.264 License includes all essential patent owners (nor would there be any way to know that). The purpose of the license is to provide licensees with coverage under the essential patents of the participating patent owners who do participate as a convenient alternative to negotiating direct licenses with each of them. The answer would be the same for a VP8 License if we were to offer one.

Not an idle threat
Despite the support for VP8 Google has rounded up, MPEG LA's position isn't to be taken lightly. History has lessons here.

Microsoft tried to establish a Windows Media Player-based video codec called VC-1, submitting it to the Society of Motion Picture Television Engineers as a standard that eventually found its way into Blu-ray players along with H.264 and another video codec, MPEG-2.

But it turned out that would-be users of VC-1 had more than just Microsoft licensing to reckon with. MPEG LA stepped in with a license pool of its own.

"As a convenience to the marketplace, the VC-1 Patent Portfolio License offers fair, reasonable, nondiscriminatory access to essential VC-1 intellectual property owned by multiple patent holders in a single license as an alternative to negotiating separate licenses," MPEG LA said in 2007 when it announced the license. The patents in the pool came from not just Microsoft, but also France Telecom, Fujitsu, Philips Electronics, LG Electronics, Matsushita Electric Industrial (now Panasonic), Mitsubishi, Samsung, Sharp, Sony, and Toshiba, among others.

And patent lawsuits, while famously expensive, are not unknown. In March 2009, MPEG LA announced that some patent holders filed patent infringement lawsuits concerning another codec, MPEG-2, against computer maker Lenovo. A similar April 2008 suit against Target concerning MPEG-2 patent infringement yielded a licensing agreement in October of that year.

But for VP8, there are no lawsuits, at least not yet. Until patent holders make their wishes known, through litigation or otherwise, and Google's camp responds, VP8 advocates will have to live with a technology at least partway in legal limbo.