Another interesting wriggle is that that Apple provides no software that would allow someone to encode h.264 video for a commercial website - be it a donation seeking blog like daringfireball.net, or a news media site like cnn.com (or even lwn.net). As mentioned on Ben Schwartz's blog the licensing for Final Cut Pro specifically states that the h.264 codec is
LICENSED HEREIN ONLY FOR THE PERSONAL AND NON-COMMERCIAL USE OF A CONSUMER TO (i) ENCODE VIDEO IN COMPLIANCE WITH THE AVC STANDARD (AVC VIDEO) AND/OR (ii) DECODE AVC VIDEO THAT WAS ENCODED BY A CONSUMER ENGAGED IN A PERSONAL AND NON-COMMERCIAL ACTIVITY
As an aside this is rather bizarre for a "Pro" tool, it's like Adobe Photoshop's license precluding its users from using the resulting images on magazines, websites or any other commercial media.
It's fair to assume that Quicktime Pro and Quicktime X also have similar restrictions. Equally, as mentioned in the same blog post above, Windows 7's video encoding capabilities also are for personal and / or non-commercial use only.
There is no easy, legal way of creating h.264 video. People like John Gruber who have uploaded such video to their commercially funding blogs are likely guilty of infringement. Moreover, it is by no means clear how such users would actually get the rights to produce h.264 video. I would imagine it involves spending a lot of money either on a properly professional tool, or on negotiations with MPEG-LA.
Whereas it's quite easy to encode Ogg Theora video. There is a patent portfolio held by the foundation to defend against spurious patent infringement claims, and as a patented well known codec developed in an open manner over close to a decade, with plenty of publicity, there is no reason why Ogg Theora is any more or less likely to be affected by a submarine patent than h.264. However there are also no hardware encoders for Ogg Theora, unlike h.264, and given the processing constraints on Apple's ultra-portable device range, I suspect that may be the real reason they're holding back; which is a pity, as they're holding everyone else back as well.
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