Google’s “Royalty-Free” WebM Video May Not Be Royalty-Free for Long

The announcement of Google’s new WebM video format and release of the VP8 video codec as an open standard have been hailed by some as the move that will free the Web from the proprietary H.264 codec widely used for online video today and favored by Apple (AAPL) and Microsoft (MSFT).

“The world would have a new free format unencumbered by software patents,” the Free Software Foundation enthused in an open letter to Google (GOOG) earlier this year. “Viewers, video creators, free software developers, hardware makers–everyone–would have another way to distribute video without patents, fees, and restrictions.”

A new era of Web video without the patent-encumbered formats that have defined the Internet to date. That seems ideal. But like many ideals, it may prove to be unattainable. As a number of observers have already noted VP8 isn’t free from patent liability. And now that Google has open-sourced it as part of WebM, that liability is likely to become an issue.

And quickly, too.

Indeed, Larry Horn, CEO of MPEG LA, the consortium that controls the AVC/H.264 video standard, tells me that the group is already looking at creating a patent pool license for VP8. Here’s an excerpt from my email exchange with him:

JP: Let me ask you this: Are you creating a patent pool license for VP8 and WebM? Have you been approached about creating one? Larry Horn: Yes, in view of the marketplace uncertainties regarding patent licensing needs for such technologies, 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.

It would seem, then, that VP8 may end up subject to the same licensing issues as H.264. If MPEG LA does create a patent pool license for the standard, the free lunch Google promised yesterday may not be free after all.

Google certainly has the market muscle to guarantee broad acceptance of WebM and the VP8 codec–if it’s a royalty-free standard. But what if it’s not truly royalty free? Who’ll foot the bill? And is the company willing to indemnify its partners from patent litigation to push WebM?

For what it’s worth, Google seems to believe that it has done its due diligence here and has the necessary patent clearance for VP8. Said Google product manager Mike Jazayeri: “We have done a pretty thorough analysis of VP8 and On2 Technologies (VP8’s developer) prior to the acquisition and since then, and we are very confident with the technology and that’s why we’re open sourcing.”

Question is, was that analysis thorough enough?

I’ve asked Google for comment on Horn’s remarks and will update here if I’m given one.