Are you sure? [LWN.net]

Are you sure?

Posted Jul 7, 2009 0:48 UTC (Tue) by bojan (subscriber, #14302)
In reply to: Are you sure? by khim
Parent article: Ogg codecs dropped from HTML5

Please. What you claiming here is that were it not for software patents, there would practically not be digital video. That is just rubbish.

The reason patented codecs were invented before the non-patented ones is simple. What proprietary software company would not apply for a patent when they could? Why would such a company want to minimize their profits?

If software patents were not available, those wanting to bring digital video the market would do it just the same. Their implementations would be copyrighted, which would give them decent market advantage. If their implementation was constantly improved, this would keep their market advantage for a while.

Asking proprietary software industry whether they like software patents or not is like asking a used car dealer if the car you are pointing at on his lot is good. It's the best, of course! The credibility of the one making the statement is what should be questioned, though.

to post comments

Again: why are you so sure?

Posted Jul 7, 2009 1:06 UTC (Tue) by khim (subscriber, #9252) [Link] (13 responses)

If software patents were not available, those wanting to bring digital video the market would do it just the same. Their implementations would be copyrighted, which would give them decent market advantage. If their implementation was constantly improved, this would keep their market advantage for a while.

Why are you so sure this is the only outcome? There are another, simpler and cleaner solution: introduce some analog component. You can do a lot of transformations using less transistors in their analog mode for cheap. Sure, the quality may suffer, but this implementation is clearly patentable (it's physical thing like radio, right), so why not?

Industry was at crossroads back then. Before that all processing was in analog. Industry wanted to switch to digital - but they wanted the same form of protection they had in "real" world! You assume that without that protection switch was unavoidable too - perhaps but it can be pushed back for many-many years (think mobile and VoIP). Will it be better outcome? I'm not so sure...

Again: why are you so sure?

Posted Jul 7, 2009 1:45 UTC (Tue) by bojan (subscriber, #14302) [Link] (8 responses)

Analogue? Yeah, that'd be cheaper, faster and more flexible. Not. There is a very good reason we are in a digital age right now. Many things are done with "smaller, faster, cheaper, better" gizmos - computers.

Industry understands volume. If you produce enough of things and over long enough time, the initial development cost is insignificant. Your customers get better things to replace their old things. You make sales. You make profits. That's all there is to it.

Industry also understands monopolies. These are licences to print money. Generally, the attitude is "get yourself one of those, if you can". Of course, nobody gives a crap about the next guy as long as the profits are all that much higher.

If you take away (partially) the ability to do the second one, the industry will continue doing the first one. And they'll make a ton of money in the process.

Volume vs monopoly? Does not work...

Posted Jul 7, 2009 3:32 UTC (Tue) by khim (subscriber, #9252) [Link] (7 responses)

Industry understands volume. If you produce enough of things and over long enough time, the initial development cost is insignificant.

If and only if you have monopoly. Otherwise your own chinese partners will kill all your profits before you can recompense your development cost. Patents are not the only way to achive monopoly - there are trademarks, exclusive contracts and so on. But patents are important part of the whole. Even if they close just one market (US one) for would-be contenders - it's important market.

Industry also understands monopolies. These are licences to print money. Generally, the attitude is "get yourself one of those, if you can".

The more secure your monopoly the better. And industry does not understand that well enough - that's why they are losing money with ineffective DRM (like DVD or Blu Ray). But certain level of future monopoly's security is a requirement - or the development will not even start.

If you take away (partially) the ability to do the second one, the industry will continue doing the first one.

If you take the monopoly away significant part of the industry will go bankrupt - this is exactly what is starting to happen to a lot of firms in last few years. Is it any wonder that industry fights for its survival tooth and nail?

Note: I'm not saying we need to keep raising monopoly to the more and more ridiculous levels for the sake of the industry. After all well-being if the industry is not an end in itself. But to say that without patents we'll have the same technological landscape we have today is equally naive.

Analogue? Yeah, that'd be cheaper, faster and more flexible. Not. There is a very good reason we are in a digital age right now. Many things are done with "smaller, faster, cheaper, better" gizmos - computers.

You don't need to push everything to the analogue part. Just enough to make effective unauthorized use of your gadget impossible. Sony did this even without analogue today (Ok, they did it three years ago, not today), but it was not an option 20 years ago.

Volume vs monopoly? Does not work...

Posted Jul 7, 2009 23:32 UTC (Tue) by bojan (subscriber, #14302) [Link] (6 responses)

I'm all in tears for the bankrupting industry! Not.

It's called capitalism. Meaning, you have competitors. Meaning, you cannot stay on top forever. It's no picnic, but that is how it works.

In the end, it is not about the industry. It is about the public and if they are getting the goods at the most competitive price. Monopolies of any kind create price increases, so if you like paying more for goods, then keep advocating software patents.

And let's not forget, the software industry already has a monopoly protection awarded to them - copyright (which includes the most draconian law there is: DMCA). And it's been awarded patent protection at the time when development and competition was fierce and there was no good reason to give them another monopoly. Now that they do have it, of course they don't want to give it up. They'll be screaming bloody murder for a long time. We've seen it all before.

Would things develop down a different path? Sure. Would we get similar results? Most likely. In the end, people develop and use things that work well and are cheap to produce. Just look at non-patented landscape of IP devices and web. Absolutely amazing what kind of software and devices evolved around this. But I'm sure you've heard all these before - no need to repeat them here.

Glad we agree in the end...

Posted Jul 8, 2009 1:26 UTC (Wed) by khim (subscriber, #9252) [Link] (5 responses)

Would things develop down a different path? Sure.

And this was my initial point. Please read again the statement I objected to again. I never said world is better for software patents. I never said innovations induced by software patents system are worth it. I just said software patents encourage innovations but they discourage adoption - and you never convincingly disproved this point.

It's called capitalism. Meaning, you have competitors. Meaning, you cannot stay on top forever. It's no picnic, but that is how it works.

Yes, but this system only works if rules are not changing. If you were offered one deal (monopoly for 20 years) and later this deal is changed (let's abolish the software patents after 2010, for example) - it's fraud. Just like copyright extensions were transgression of "big boys" (like Disney) against public (when Mickey Mouse was created the reasonable expectation was that this character will be available to everyone in 1984) - just in opposite direction.

Of course Congress is entitledto change rules "on the fly" (otherwise you can not ever change rules at all), but this is not something to be done at the drop of hat. And when this change is contemplated it's good to consider both sides of the software patents coin...

Glad we agree in the end...

Posted Jul 8, 2009 1:42 UTC (Wed) by bojan (subscriber, #14302) [Link] (4 responses)

> I just said software patents encourage innovations but they discourage adoption - and you never convincingly disproved this point.

Short memory - that's what we all have. Software was being developed just fine without patents. Plenty of innovation. I mention that before. But, you claim this does not disprove your theory of software patents. Back in the 90's just about everyone in the thriving proprietary software industry was _against_ software patents. Now they are for them, because they want to protect status quo. This is monopolies 101.

> Yes, but this system only works if rules are not changing.

Rules (laws) are constantly changing. Otherwise, parliaments would be out of business. The deal is that there are always transition periods. You tell people that what they have will be respected, but going forward after some point in the future, rules will be different. So, they adjust the expectations and continue. This is standard legislative practice.

Straw man attack - here we come!

Posted Jul 8, 2009 3:00 UTC (Wed) by khim (subscriber, #9252) [Link] (3 responses)

Software was being developed just fine without patents. Plenty of innovation. I mention that before.

And it's now what I'm talking about at all. I'm not saying (and never said) lack of software patents will bring number of innovations down to zero. Just like lack of copyright will not bring number of stories down to zero.

Back in the 90's just about everyone in the thriving proprietary software industry was _against_ software patents.

Suuure. IBM was against patents? Or may be Philips was against software patents? Microsoft was against software patents because it had none - but to say that the whole industry was against them is just... how come they were ever created and used (including in audio/video codec standards) if everyone was against them?

Straw man attack - here we come!

Posted Jul 8, 2009 4:21 UTC (Wed) by bojan (subscriber, #14302) [Link] (2 responses)

> Microsoft was against software patents because it had none - but to say that the whole industry was against them is just... how come they were ever created and used (including in audio/video codec standards) if everyone was against them?

And Oracle. And Autodesk. And Adobe. And Borland. And Lotus. All innovators at the time.

As usual, there is always enough of the established players that want to retain status quo for a greedy proposal to go through. Just think of that used car salesman again. Do you really need to ask him what he thinks of the car you're pointing at?

Have it your way. Software patents are just peachy and everybody loves them. Let's have more of them. Then we'll have to have even more stupid workarounds like the recent VFAT kernel stuff. Awesome. And we have digital video today because we had software patents. Otherwise, we'd still be stuck with the old analogue gear.

PS. BTW, any idiot working at USPTO or any other patent office that sees fit to approve moronic things like Microsoft's "computer bolted to the car that has wireless" should be immediately fired and words "patently stupid" tattooed on his/her forehead.

PPS. When we entrust patents to the morons that come up with rationales like this: http://www.ipaustralia.gov.au/strategies/case_kambrk.shtml, all kinds of things go wrong. Note: the company is alive and well, despite the fact it didn't get that patent, when it supposedly should have.

Now you are just bitter...

Posted Jul 8, 2009 5:30 UTC (Wed) by khim (subscriber, #9252) [Link] (1 responses)

And Oracle. And Autodesk. And Adobe. And Borland. And Lotus. All innovators at the time.

All? You mean Apple or AT&T were against software patents too? Industry was divided back then like it was now. World is not white and black - there are other colors.

Have it your way. Software patents are just peachy and everybody loves them. Let's have more of them. Then we'll have to have even more stupid workarounds like the recent VFAT kernel stuff. Awesome.

Again: don't oversiplify things. I never said software patents "are just peachy" - on the contrary I think they must be abolished. Not because they are pure evil, but because benefits are not big enough and fallout is way too big. But when you are starting the whole "software patents have no good sides to them at all" you just show yourself as someone totally detached from reality - and so make all your other argument suspicious too.

And we have digital video today because we had software patents. Otherwise, we'd still be stuck with the old analogue gear.

Today? Nope. Not even close. We had diginal video 20 years ago because of the patents and now we have huge mess in this area related to said patents. Was the advantage of getting digital video sooner rather then later worth it? Hard to say, but probably not. But it's no coincidence that this area is so heavily patented - and to ignore the fact is to throw out the baby with the bath water...

BTW, any idiot working at USPTO or any other patent office that sees fit to approve moronic things like Microsoft's "computer bolted to the car that has wireless" should be immediately fired and words "patently stupid" tattooed on his/her forehead.

Nope. The system is designed in such a way as to punish honest worker (lost royalties! waaah!) and reward hustlers (Ok - this patent was thrown out by court... let's try the other 100 patents we have available).

If the problem was moved to courts - it should be fixed there. Right now the patent litigation process is designed in such a way as to make it great for patent trolls and disaster for honest guys. Even if you win patent litigation and prove that patent was frivolous - you get nothing in return! May be pat on the head... If we know that a lot of patents are bogus - why not introduce something like "reverse treble damages" for litigator? I mean: Microsoft is free to claim it lost $100'000'000 because TomTom refused to buy license patents in question - but then it should be ready to pay $300'000'000 if the patents are reexamined and invalidated. This will make 99% patents useless - but the rock-solid ones will be kept around.

I'm not the sure it's the best way to fix the patent mess. May be, may be not. But we should think in this direction and not in direction of deus ex machine which can remove all frivolous patents from existence after the fact...

Now you are just bitter...

Posted Jul 8, 2009 21:36 UTC (Wed) by bojan (subscriber, #14302) [Link]

> But when you are starting the whole "software patents have no good sides to them at all" you just show yourself as someone totally detached from reality - and so make all your other argument suspicious too.

Oh, there are good sides to software patents. For the patent holders, that is.

Once again, history is forgotten. Software was being developed _without_ patents just fine. But, as usual, lawyers have found an angle, so they pursued it. And now we have the mess, as you said yourself.

> But it's no coincidence that this area is so heavily patented - and to ignore the fact is to throw out the baby with the bath water...

Coming back to your original remark:

> Patent-encumbered formats were developed faster then totally free ones - and diffirence is sizable: years, not days or months.

The only question here is this: if software patents were not available, would the same companies develop digital video at the time?

Your answer to this question is "probably not" (i.e. maybe there is something to having software patents after all).

I'm pretty sure they would. Said companies would licence their product differently - using just copyright - but they'd do it just the same. Even 20 years ago people understood Moore's law. They knew processing power in the future would make digital players cheaper than analogue ones. The also knew that storage would improve, making it practical to have a superior digital recording on a medium that can actually hold it. And they knew that if they didn't keep improving their products, nobody would want to buy them.

So, yeah, I _really_ do think that software patents are a terrible idea. Digital video included. If this makes me a lunatic, then fine.

Again: why are you so sure?

Posted Jul 7, 2009 14:17 UTC (Tue) by pboddie (guest, #50784) [Link] (3 responses)

Why are you so sure this is the only outcome? There are another, simpler and cleaner solution: introduce some analog component. You can do a lot of transformations using less transistors in their analog mode for cheap. Sure, the quality may suffer, but this implementation is clearly patentable (it's physical thing like radio, right), so why not?

By asserting that patents were the crucial factor in making digital video a reality in a timely fashion, you're confusing at least two different things: hypothetical incentives and technical readiness. You actually touch upon the real reasons for the rapid availability of digital video solutions in your own comments.

In fact, the people already doing "proto-digital" video (such as Philips - a known patent cartel member - with their laserdisc solutions) were obviously in a position to leverage their existing expertise in video, regardless of whether patents might be offered as incentives. Such companies could obviously introduce hardware components at will in order to retain monopoly control over certain solutions, mostly because this was already what was happening (although one could argue that their motivation was to sell boxes to consumers, as seen with the multitude of failed CD-based formats and units).

Even so, other companies with limited experience of pre-digital video were able to deploy digital video solutions (such as Acorn, with their Replay codecs), demonstrating that capable innovators were actually able to enter the market satisfactorily. These days, such innovators would be excluded by the kind of innuendo and veiled threats that sees open video standards excluded from open Web standards by, naturally, members of the existing patent cartels. Meanwhile, well-researched (technically and legally) open codecs, such as Dirac, are the elephant in the room: Apple and friends would rather that people didn't hear about something that quite probably isn't encumbered at all (and BBC Research are probably the people most likely to know); it's best for Apple and company that the proprietary status quo persists and that they can blame some mystery third party for restricting the user's freedom, rather than owning up to their role in the whole affair.

The means are different, the result is the same...

Posted Jul 7, 2009 17:33 UTC (Tue) by khim (subscriber, #9252) [Link] (2 responses)

Even so, other companies with limited experience of pre-digital video were able to deploy digital video solutions (such as Acorn, with their Replay codecs), demonstrating that capable innovators were actually able to enter the market satisfactorily.

Yup - and where this enterprise went? Right: nowhere - to the extinction. The same people founded another enterprise (heavily-based on patents) and it's thriving today (I mean ARM Ltd).

These days, such innovators would be excluded by the kind of innuendo and veiled threats that sees open video standards excluded from open Web standards by, naturally, members of the existing patent cartels.

1. That's what I'm talking about when I talk about adoption oproblems
2. Acorn was easily excluded by other means back when Acorn Replay was relevant.

Meanwhile, well-researched (technically and legally) open codecs, such as Dirac, are the elephant in the room.

Not really. There are very few ways to produce Dirac (do you know a can which can save files in Dirac format?) while H.264 can be produced easily. There are a lot of hardware and software to play H.264 - not so with Dirac. Typical case of sunk costs. Thus I'm pretty sure dirac will not displace H.264 (like vorbis failed to displace MP3). It's good to have all these backup plans but you can be pretty sure mainstream will continue to be MP3 and H.264. And in the long run it's irreleant: by 2024 (may be earlier) all H.264-related tools will be free for anyone to use, so this particular was is lost. MP3 tools will be free by 2012 - do you still believe in future of vorbis?

The means are different, the result is the same...

Posted Jul 8, 2009 11:09 UTC (Wed) by nye (guest, #51576) [Link]

>MP3 tools will be free by 2012 - do you still believe in future of vorbis?

Absolutely. Vorbis eclipses MP3 in technical quality, which is really the only thing that matters in cases where you control the player.

All the world is not an iPod, and the uses for compressed audio stretch far beyond personal music players.

The means are different, the result is the same...

Posted Jul 8, 2009 11:13 UTC (Wed) by pboddie (guest, #50784) [Link]

Yup - and where this enterprise went? Right: nowhere - to the extinction. The same people founded another enterprise (heavily-based on patents) and it's thriving today (I mean ARM Ltd).

Careful: the people who did Replay may have had a lot to do with the ARM architecture, but that doesn't mean that they wrote ARM Ltd's business model. Moreover, ARM is a hardware design licensing business, albeit with dubious aspects which probably get people into trouble even for making stuff that interprets their instruction sets. So it isn't as simple as saying that patentability makes for good business in all/any fields, even if Acorn made the mistake of not licensing their software in any sense to other people. In fact, had Acorn merely made their software available for other platforms and relied on good old copyright, it would have helped them a lot more than letting them have software patents.

Do I still believe in the future of Vorbis? Yes. The quality was better than MP3 ten years ago, at least with the tools I had available, although I really prefer lossless formats. Likewise, the myths about Theora's quality compared to the cartel formats are being put to bed as I write this. Sure, "sunk costs" ensure that there's little incentive for established companies to adopt other formats, but it's the effect on everyone else that needs addressing, at the very least.

It's easy for people to argue for more patents on the basis of giving people incentives because that's what patents are supposed to be about, but it's far from accepted that patents have been the vehicle for stimulating innovation that such people claim. Instead of going along with such claims, I suggest that the burden of proof is shifted onto those making such claims because there's plenty of evidence of the negative aspects of imposing patents on a domain.

My point about Replay undermines the assertions that people need patents to develop such stuff and that large teams in large corporations are also required. Not only are those two supposed factors independent of each other, they are also independent of whether innovation actually occurs.