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Google's WebM Strategy: Open-Source Approved or Patent Exposure Minefield?

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[Editor's Note: Between the time this article was written and the time it was published, Google appeared to reverse a portion of its stance on the BSD license and changed its WebM FAQ accordingly. In fact, Google now says that its intent was always to use the standard BSD license.]

"A key factor in the web's success is that its core technologies such as HTML, HTTP, and TCP/IP are open and freely implementable."

These words are part of Google's WebM frequently asked questions (FAQ) on the WebM website. In a section titled "Why Do I Want WebM?" the FAQ attempts to explain various parts of Google's new WebM (.webm) video format.

"Though video is also now core to the web experience, there is unfortunately no open and free video format that is on par with the leading commercial choices," the FAQ continues. "To that end, we started the WebM project."

Last week's article on WebM dealt with the technical limitations of the written specification as well as the perceived quality of the VP8 codec, which Google has designated as the only video codec that can be contained within a .webm container.

Beyond differing opinions in the marketplace about the quality, with initial testers ranking quality lower than VC-1 while others say it's almost as good as H.264, the next big unanswered question is whether the WebM container format and VP8 codec are truly open-source compliant.

Google says yes, but others disagree. This week we'll look at what needs to happen to assuage the critics, while also highlighting Google's attempt to write a clever license that indemnifies the company. We'll also look briefly at a "poison pill" clause that proactively blocks from potential lawsuits, a first for an open-source developer contract.

What Is Open Source Anyway?
This question has been around for as long as there has been open-source and free software. An upcoming article in our "Back to Basics" series will delve into the various flavors of open-source software, but at its simplest level it is merely software whose source code has been made available for general use. 

Google's stance is that it has open-sourced the software from the previously proprietary VP8 codec, and that the specifications are final. Sort of.

"The VP8 and WebM specifications as released on May 19th, 2010 are final," the FAQ states. "We believe that the code and tools can evolve and improve for many years without requiring changes to the core specifications."

Beyond the publication of the source code, Google has entered into new territory by creating a license that limits the use of the VP8 codec as well as the ability for developers to file patent infringement lawsuits against Google.

"The main difference between the standard BSD license and the VP8 license is that this license grants patent rights, and terminates if patent litigation is filed alleging infringement of the code," the FAQ stated as of May 24, 2010, when The Register published an article surrounding some of the controversy in Google's licensing attempts. (BSD licenses are standard free software licenses, named after the Berkeley Software Distribution operating system.)

Interestingly, the line has since been struck from the FAQ. In fact, in re-reading the FAQ today before finalizing this article, I find that the entire section has been struck from the FAQ.

Eliminated parts include the reasons that Google gave for the new licensing scheme, including this key piece of information:

"The main reason it [the standard BSD license] was not used is that filing patent litigation against someone using the Apache 2 license only terminates patent rights granted under the license. Whoever filed the litigation would still be able to use the software they are suing over and still be in compliance with the license. This license, however, terminates all rights when patent litigation is filed. Rather than modify the Apache license to meet our needs, which would probably lead to significant confusion, we went with the simpler approach of a BSD style license + patent provision."

The elimination of this section of the FAQ does not appear to have eliminated the initial concerns, however, in the open-source community. There is already significant unrest about its new software license, which some are claiming isn't an open-source license at all.

"The new license Google is using for the project is one that's not been submitted to the Open Source Initiative for approval," wrote Simon Phipps, a board member of the OSI. "As it stands it possibly can't be approved due to Google's ironic inclusion of a 'field of use' restriction in the patent grant (which is restricted to "this implementation of VP8" rather than the more general grant in the Apache license from which the text started)."

Phipps went on to posit that-in his opinion-the WebM and VP8 source code is not currently open source, and positing that the license could be negated by developers who chose to use only a portion of the code.

"This problem can be readily fixed by Google, and speaking as a member of the OSI Board I'd love to see them submit a templatised version of this license for approval," wrote Phipps.

The Patents
The bigger issue for Phipps and those developers seeking to avoid litigation-should the Google/On2 patents prove indefensible-is that Google hasn't released information about its research into the On2 patents.

"Despite their claims that WebM was been checked for patent risks when ON2 was acquired, Google has neither made its research available nor does it offer a patent indemnity," wrote Phipps. "Google has expressed extreme confidence in the patent safety of WebM, yet has failed to create a patent pool with its other endorsers and grant free and indemnified licenses to WebM users."

The patent pool Phipps refers to is similar to the pool created by MPEG-LA for H.264 patent holders.

On2 shareholders often used what they saw as the byzantine licensing structure of H.264 and its patent pool holder, MPEG-LA, as the justification for backing On2's private licensing scheme. Several StreamingMedia.com articles addressed the licensing of H.264, both prior to and after the licensing moratoriums that MPEG-LA put into place in 2009, so there's little lack of irony that Google's licensing language may lead MPEG-LA directly into the patent pool discussion, creating a significant headache for the "royalty free" status of WebM and the VP8 codec.

"The path is open for those hostile to digital liberty, such as the MPEG-LA licensing cartel, to 'tax' VP8 users," wrote Phipps. "They have already declared an intent to do so."

The declared intent was published in a Digital Daily article by John Paczkowski, titled "Google's 'Royalty-Free' WebM Video May Not Be Royalty-Free for Long."

In the article, Paczkowski published a portion of a conversation with MPEG-LA CEO Larry Horn. In answer to Paczkowski's question about whether MPEG-LA had been approached to create a patent pool license for VP8 and WebM, Horn said the uncertainties in Google's licenses and patents were of concern to developers 

"In view of the marketplace uncertainties regarding patent licensing needs for such technologies," said Horn, "there have been expressions of interest from the market urging us to facilitate formation of licenses that would address the market's need for a convenient one-stop marketplace alternative to negotiating separate licenses with individual patent holders in accessing essential patent rights for VP8 as well as other codecs, and we are looking into the prospects of doing so."

In other words, if Google doesn't address patent indemnification-or at least release information about its findings on the patents efficacy-a new licensing pool will be created to capitalize on fear, uncertainty, and doubt. Yet Google seems more concerned with modifying its WebM FAQ than it is with helping the online video world understand the practical and financial benefits of an open-source competitor to H.264.

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