Well, this certainly explains a whole lot. Both Apple and Microsoft have stated that the legality of Theora is highly debatable, and as it turns out, they knew more than we do – most likely courtesy of their close involvement with the MPEG-LA. Responding to an email from Free Software Foundation Europe activist Hugo Roy, Steve Jobs has stated that a patent pool is being assembled to go after Theora. Update: Monty Montgomery of Xiph (Ogg and Theora’s parent organisation) has responded on Slashdot: “If Jobs’s email is genuine, this is a powerful public gaffe (‘All video codecs are covered by patents’). He’d be confirming MPEG’s assertion in plain language anyone can understand. It would only strengthen the pushback against software patents and add to Apple’s increasing PR mess. Macbooks and iPads may be pretty sweet, but creative individuals don’t really like to give their business to jackbooted thugs.”

Hugo Roy published an open letter to Steve Jobs in response to the Apple CEO’s letter regarding Adobe and Flash. In it, he praises Jobs for his position on Flash and Apple’s involvement with HTML5. He then goes on to remind Jobs that H264 is not an open standard.

“May I remind you that H.264 is not an open standard? This video codec is covered by patents, and ‘vendors and commercial users of products which make use of H.264/AVC are expected to pay patent licensing royalties for the patented technology’,” Roy writes, “This is why Mozilla Firefox and Opera have not adopted this video codec for their HTML5 implementation, and decided to chose Theora as a sustainable and open alternative.”

Roy also sent the open letter to Steve Jobs’ email address, and lo and behold, he received a reply. The reply is genuine (he published the email headers), and it doesn’t bode well for the future of the Theora codec. This is what Jobs had to say:

All video codecs are covered by patents. A patent pool is being assembled to go after Theora and other “open source” codecs now. Unfortunately, just because something is open source, it doesn’t mean or guarantee that it doesn’t infringe on others patents. An open standard is different from being royalty free or open source.

The reply is a little vague about who is assembling this patent pool to go after Theora and other open source codecs, but seeing Apple’s close involvement with the MPEG-LA, it seems most likely that’s where it’s all happening. It’s obvious that Microsoft will be involved as well.

I am quite shocked about this. It seems that after a decade of empty threats, the MPEG-LA is finally planning on making a legal move against Theora. Such a move will send a shockwave through the industry, and would open yet another front on the Apple-Google tug-of-war: Google, Mozilla, Opera, and Wikipedia are among some of the major names that implement Theora support and/or employ Theora.

A lot of pieces of the puzzle suddenly fall into place. Both Apple and Microsoft (as well as the MPEG-LA) have expressed concerns over Theora’s legality, but these concerns were always empty, and never backed up by any facts. It now seems they knew more than we did.

It also explains why Google openly distanced itself from Theora; their legal department is probably aware of what’s coming their way. It never made any real sense for Google to support H264, since Google is not part of the MPEG-LA, and thus, has to follow the whims of its biggest competitors (Apple and Microsoft).

It seems like the future of a truly open web now depends on Google opening up VP8, hoping they did their homework and made it not infringe. Google, please open up VP8, and launch a HTML5/VP8 YouTube version, which will work flawlessly on Chrome, Firefox, and Opera.

Serve Flash to every browser that does not implement it. Harsh, but fair. Force-feed Apple and Microsoft that Flash pie.