Google’s VP8 Patent Problem (It’s Even Bigger Than You Think)

Last week I encouraged Google to rethink their VP8 open sourcing patent strategy and

“do the right open standards thing — join and contribute to responsible standards groups that are working to solve the royalty-free open standards need.”

The blog was picked up in Simon Phipps’ ComputerWorld blog, ZDNet, The Register, LWN and elsewhere.

At one level, this is a classic debate about what is “open” and what should be its hierarchy of values, priorities, and even basic definitions.

But is a “de facto” standard the same as an “open” standard?  No, at least not in the definition of open standards of OpenForum Europe, of which Google is a leading member.

But there is more to consider.  Google is including WebM in the next version of Android and rules Android device makers with a strong hand, necessarily playing favorites to steer the Android ship. So the message must be clear to Android device makers, suppliers, and wannabes to get on the WebM bandwagon.  And though Google is known as tough with patent trolls, Android device makers appear to have been either left to fend off patent attacks themselves, cut deals, or perhaps be quietly aided in patent litigation defense.

All commercially rational choices in the crazy, hard-nosed, twisted global mobile patent wars.  After all, look at where the patents came from in MPEG LA subsidiary MobileMedia’s law suits against Apple, HTC, and RIM (Nokia and Sony) and HTC’s counter suit against Apple (AMD through Saxon).

So is the net-net simply “until you take open source and put it in a product you can’t get sued,” so just watch the big boys force each other to take, or cave in to, patent risks in order to get to the head of the line for a promising platform?  And just hope in the meantime that royalty-free open standards for the Open Web escape cannon fodder, collateral damage, or sell-out status in the smart phone patent wars?

Unfortunately, patent hold-up gambits thrive on adopt-first-ask-questions-later scenarios of the sort Google seems to be arm-twisting for here.  Standards groups, regulators, and industry continue to grapple with this challenge.   See yesterday’s FTC/DOJ/PTO workshop and the EU’s draft guidelines for horizontal cooperation agreements that mention that “[t]here should be no bias in favour or against royalty free standards, depending on the relative benefits of the latter compared to other alternatives”.

But if vendors ignore open standards altogether, we all lose.


According to CNET, the W3C is taking the position that WebM/VP8 needs to go through a royalty free standards process:

“WebM/VP8 has the potential of providing a solution for the baseline video format of HTML5. To be seriously considered by the W3C HTML Working Group, the specification would need to go through a standards group and be developed under RF [royalty-free] licensing participation terms,” said Philippe Le Hegaret, leader of Web video work at the W3C, in a statement. “W3C remains interested in having a video format for HTML5 that is compatible with the W3C Royalty-Free Patent Policy.”