MPEG LA Announces Call for Patents Essential to VP8 Video Codec

As I understand it patent pools have been to been considered to at extreme risk of running into legal problems. In particular, the concern is that the aggregation of patents may unlawfully lock out other parties from participating in an industry (/without paying the previously standing players). Patent _are_ a government granted monopoly. The infrastructure that creates these things also provides a lot of opportunity to hang regulatory hooks on the results.

It's fine to patent a particular method for coding video— it can be okay to assemble a collection of strictly necessary complementary patents require to code video in a particular way— it's not lawful to assemble a cartel which anyone who wants to code video must deal with.

The CEO of MPEG-LA has made statements which run squarely into the danger zone here. "Virtually all codecs are based on patented technology, and many of the essential patents may be the same as those that are essential to AVC/H.264." ... //thats a nice codec you've got there, it would be a shame if anyone asserted patents against it//

Prior to engaging in this business MPEG-LA requested a review of their business plan by the DOJ, their letter outlined quite a few operating conditions which they appear to have since ignored, and the DOJ outlined a number of constraints which MPEG-LA has subsequently violated. In 1997 the DOJ was "not presently inclined to initiate antitrust enforcement action", but it certainly seems possible that the situation could change. (http://www.justice.gov/atr/public/busreview/215742.htm)

So, I think it's not clear cut at all that there is no legal danger in this approach. Even if they believe the risk to be small, taking it still requires an expenditure of resources to assess the risk and benefits, supporting my speculation that they are actually concerned about this, which was really the point that I was making.