H.264 support coming to Firefox [LWN.net]

H.264 support coming to Firefox

Posted Mar 20, 2012 15:38 UTC (Tue) by gmaxwell (subscriber, #30048)
In reply to: H.264 support coming to Firefox by Seegras
Parent article: H.264 support coming to Firefox

You've presented a general argument which may be applicable to many things, but I do not think it is applicable here.

In this case it is the contributing authors/inventors of the H.264 standard who have created these patents—not some random trolls.

Even if H.264 was especially uninventive, they could always patent the detailed interactions of trivial but essential details: "code this bit after that bit and multiply by two". It's possible that a few—many, perhaps—of the patents are inapplicable due to mistakes in their drafting or are invalid due to prior art. But there are thousands of them, with tens of thousands of claims total. It is inconceivable—considering the quantity and that these are patents by the authors of the format in question—that all the claims would be invalid or inapplicable.

Moreover, these patents are actively and successfully enforced. This is not a hypothetical risk, and the enforcement you hear about is the minority where NDAs didn't manage to hide the existence of the enforcement entirely. Many parties, including powerful ones (who could afford a patent fight), find the threat credible enough to pay up. Indeed, if you receive a legal threat for H.264 and you ask an attorney for advice you will be told to _SETTLE_: there is no question of fighting these patents.

It's also the case that you won't find anyone competent claiming that the patents are inapplicable—quite the opposite: patents are only included in the MPEG-LA pools after review by an independent expert who appraises them to be essential. The inclusion of a non-essential patent would violate the process MPEG-LA laid out for the DOJ in their business process review. This process might be corrupt rubbish, but its existence surely raises the bar for someone who wants to waive away applicability.

It might be another matter if you had some H.264 implementation where the authors were saying "we carefully worked around all the patents and didn't implement parts of the specification that we couldn't work around"—but we don't have that here. The best you can get from the authors of open source H.264 implementations is "We don't know, we read the specs by the authors of the patents, not the patents themselves." but more commonly they too just tell you that you need licensing.

Unlike WebM, a practicing entity who would seek to enforce these patents is not even potentially impeded by retaliation clause-enabled licensing—they're free to enforce. Every person who adopts H.264 in the hope they'll be left alone is another target that any of the patent holders of the format (or other parties) can pick and choose from to maximize their revenue.

Sometimes, often even, ignoring patent risks is prudent—it's just too hard and ineffective to look—but here even an idiot wouldn't consider this riskless. The work has been done, the patents found applicable by experts, which should come as no shock because this is all by design. Sometimes ignoring patents is a productive act of civil disobedience. But in this case? In this case ignoring the patents is just helping to feed the monster—your use of his formats builds network effects that provide him an endless stream of tasty victims.

As an aside, it seems you've fallen into a common misunderstanding with respect to "software patents". "Software patent" is a term of art referring to patents drafted without any reference to a physical embodiment, basically the same thing as business method patents. Most codec patents are not "software patents"; rather than purely abstract language they write claims like "A decoder comprising:" or "A computer readable medium storing a computer program that is executable by at least one processor". These claims are not "software patents" as they refer to real devices which perform tangible actions, but you can infringe, or induce people to infringe, via software all the same.

(Actual software patents are a problem for Free Software too—they're what enable the patenting of abstract applicationless concepts of linked lists and suchlike things. But when you connect an idea with a concrete real world impacting application—producing a machine or transformation, if you will—you have something patentable.)

This is one reason why H.264's pool can contain over two thousand patents from 53 distinct countries (AT:36, AU:35, BE:34, BG:15, CA:24, CH:32, CN:129, CY:13, CZ:27, DE:82, DK:33, EE:13, ES:57, FI:40, FR:82, GB:81, GR:22, HK:29, HU:21, ID:27, IE:27, IL:1, IN:18, IS:1, IT:64, JP:530, KR:190, LI:32, LT:1, LU:13, LV:1, MC:12, MT:1, MX:36, MY:13, NL:63, NO:1, NZ:1, PH:1, PL:1, PT:28, RO:11, RU:18, SE:45, SG:12, SI:17, SK:16, TH:1, TR:28, TW:21, US:291, VN:3, ZA:1), even though "software patents" are more impermissible in some places than others. And perhaps most importantly: there is a presumption of validity for granted patents. The US Supreme Court recently had the opportunity to deny patent protection for software and, although they narrowed business method patents, clearly and explicitly stopped short of excluding software.

Don't make the mistake of thinking that the courts are bound by computer science navel-gazing. We define the tomato to be a vegetable for the purpose of commerce. This isn't because the lawmakers are ignorant of botany—it's because the law is concerned with achieving the 'correct' legal and social effect. Software-powered systems are the core of many of the most valuable and important inventions today. The same kind of autistic but-software-is-math arguments could easily be extended to argue that anything is math: "But what is a cotton gin but an arrangement of atoms, which could be run on a molecular simulator with the same behavior—it's just math! unpatentable!". The courts say "Nonsense! This is clearly an invention with measurable, commercially significant applications and influence on the real world; the application of these techniques are patentable like any other invention, and to do otherwise would moot the system."

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H.264 support coming to Firefox

Posted Mar 20, 2012 19:04 UTC (Tue) by gmaxwell (subscriber, #30048) [Link]

> There's certainly no need to be offensive about someone choosing, in this case, to make a philosophical argument regardless of whether or not you think it will influence a judge on the topic.

My apologies to anyone I offended there— the barb was made out of irritation at the many discussions I've had where the other side simply kept repeating the fact that "software is math" as though I were some idiot to not know it while simultaneously suggesting this fact to be a major revelation which obviously settled the matter completely.

It is not so— but for some reason, some people can't seem to get over that idea that some rule so fundamental to their science is more or less irrelevant to the law. I wished to head off that argument preemptively by making the claim that its so useless an argument that anyone who can't get past it is suffering from mental dysfunction. To argue it once as a point of consideration— fine, it was rude of me to paint everyone with that broad brush.

The core point remains: Software-is-math-thus-not-patentable-under-the-rules is not a good argument or even a novel one. The courts have considered ideas of this kind many times before and discarded them for the reason I described: "petitioner['s] [...] argument that if everything other than the algorithm is determined to be old in the art, then the claim cannot recite statutory subject matter [...] To accept the analysis proffered by the petitioner would, if carried to its extreme, make all inventions unpatentable because all inventions can be reduced to underlying principles of nature which, once known, make their implementation obvious" (Diamond v. Diehr)

I would gladly agree with you on almost any ethical ground you offered— but the courts generally leave it to congress to create systems and define their contours, only intervening when the injustice is particularly great. They have had many opportunities to intervene in this area and they have carefully avoided doing so. I do not have the slightest disagreement that our patent system needs massive reforms relative to how patents are applied to software.

But such reforms seem nowhere in sight, the system we have is the system we have— socially ideal or not— and in this system the unlicensed use of H.264 is so thoroughly clear a violation that it creates no practical opportunity to chip away at the boundaries. Distributing H.264 under the guise of willful ignorance only serves to entrench the existing system by enriching its beneficiaries through enhanced network effect and by denying marketshare to competing alternatives which are unencumbered or at least less-obviously-encoumbered enough that litigation over them would bring the opportunity of improving the system.

H.264 support coming to Firefox

Posted Mar 20, 2012 19:55 UTC (Tue) by nybble41 (subscriber, #55106) [Link]

> The courts have considered ideas of this kind many times before and discarded them for the reason I described: "petitioner['s] [...] argument that if everything other than the algorithm is determined to be old in the art, then the claim cannot recite statutory subject matter [...] To accept the analysis proffered by the petitioner would, if carried to its extreme, make all inventions unpatentable because all inventions can be reduced to underlying principles of nature which, once known, make their implementation obvious" (Diamond v. Diehr)

Simply put, the court was wrong. They created a straw-man argument--that knowledge of the underlying principles makes all inventions obvious--and based their conclusion on that rather than the actual argument. If an invention is truly obvious to anyone who understands the underlying natural principles, then the patent *shouldn't* be granted. There is no public *benefit*, either in the form of an incentive for inventing or public disclosure, to granting such a patent, only public *cost*. However, it is not true that knowledge of the principles of nature is enough to make an invention obvious. It is precisely non-obvious applications of known principles which patents are supposed to cover.

Evaluating an algorithm on a device specifically designed to evaluate algorithms is always obvious. Taking a bit of math which you could evaluate in your head, and evaluating it on a computer, is an *obvious* application of known principles, regardless of the specific algorithm.

H.264 support coming to Firefox

Posted Mar 20, 2012 20:37 UTC (Tue) by gmaxwell (subscriber, #30048) [Link]

> Simply put, the court was wrong. They created a straw-man argument--that knowledge of the underlying principles makes all inventions obvious--and based their conclusion on that rather than the actual argument.

I think you're making a strawman from my limited quote— I apologize if I encouraged that.

The court has a nuanced view of the subject— they start by saying 'well, you can't argue that because its reduceable to natural law it's not patentable' and effectively continue 'so we have to figure out where the boundary is'.

For the latest in the court's views, I recommend today's Mayo v. Prometheus: http://www.supremecourt.gov/opinions/11pdf/10-1150.pdf (which is perhaps interesting for this discussion in light of the fact that they solidly avoided adding any new explicit tests or criteria, but decided against patentability on the basis of the same case law I was quoting).

H.264 support coming to Firefox

Posted Mar 20, 2012 20:50 UTC (Tue) by shmerl (guest, #65921) [Link]

This boundary will never be clearly ironed out. However software patents need to be abolished on the basis that they go against the purpose of the patent law itself - i.e. they don't promote knowledge and inventions and instead stifle the progress.

H.264 support coming to Firefox

Posted Mar 20, 2012 21:19 UTC (Tue) by nybble41 (subscriber, #55106) [Link]

>>> "To accept the analysis proffered by the petitioner would, if carried to its extreme, make all inventions unpatentable because all inventions can be reduced to underlying principles of nature which, once known, make their implementation obvious"

>> Simply put, the court was wrong. They created a straw-man argument--that knowledge of the underlying principles makes all inventions obvious--and based their conclusion on that rather than the actual argument.

> I think you're making a strawman from my limited quote--I apologize if I encouraged that.

Are you saying that you misquoted the court? If not, their words are fairly clear, and stand on their own. The phrase "if carried to its extreme" alone is a clear sign that what follows is likely to be a straw-man argument.

> ... they start by saying 'well, you can't argue that because its reduceable to natural law it's not patentable'

Which is also wrong. If a patent can be reduced to nothing more than natural law then it *shouldn't* be granted. Natural law, like math, is one of the excluded subject matters. The laws themselves, like all mathematical formulas and algorithms, are never non-obvious or novel; they pre-exist the patent, and should be considered public knowledge from the start. The patent can only be justified on the basis of the new knowledge it discloses, i.e. a novel and non-obvious *application*.

Given any algorithm, the evaluation of said algorithm "on a computer" may be a novel application, but is never non-obvious. Evaluating algorithms--*any* algorithms--is the entire point of a computer. For that reason alone, software patents (with or without "on a computer") should never be granted. They disclose nothing which was not perfectly obvious before.

H.264 support coming to Firefox

Posted Mar 20, 2012 23:03 UTC (Tue) by pboddie (subscriber, #50784) [Link]

My apologies to anyone I offended there— the barb was made out of irritation at the many discussions I've had where the other side simply kept repeating the fact that "software is math" as though I were some idiot to not know it while simultaneously suggesting this fact to be a major revelation which obviously settled the matter completely.

I agree that mere repetition of arguments without bringing about any revelation is of limited benefit. It's important to put such arguments into context, provide examples, and so on. On the other hand, it's a lot of work to do so on every occasion.

I would gladly agree with you on almost any ethical ground you offered— but the courts generally leave it to congress to create systems and define their contours, only intervening when the injustice is particularly great.

The courts are arguably the wrong place to change any of this: as people often point out, everyone is just practising or exercising the law and have to do what it says, give or take the nuances of interpretation. It is far better to seek to change the law. That is when the ethical arguments need to be made.