When Google announced that it was signing a patent agreement with the MPEG LA patent pool, the company said that it would ensure that a licence agreement for third parties using WebM/VP8 would be put in place that would let them make use of the protection within the agreement. After the publication of a draft of the cross-licence agreement, Simon Phipps, open source advocate, has voiced doubts about the agreement saying it "closes the door on software freedom".

In a personal post on his Infoworld blog, Phipps points out that the draft requires each user wishing to benefit from the agreement to enter into a contract with Google. As most open source projects lack a legal representative there would be no one to enter into such an agreement. The agreement also includes permission for Google to contact the signer and for them to use the signer's name in publicity. The acquired licence is explicitly not sub-licensable so could not be transferred automatically to downstream users of a project.

The licence is also restricted to covering encoding, decoding, transcoding and playing of VP8 video so if a developer is writing code that is handling more than this, the licence doesn't apply. "For open source, that chills innovation and leads to uncertainty over whether a specific program is covered," says Phipps, who goes on to note that the licence draft appears to be in conflict with the Open Source Definition (OSD).

OSD clause 6 says no field of use restrictions, OSD clause 7 says no registrations and OSD clause 5 says no discrimination (in this case against people unwilling to be identified). It is also arguable, he says, that the draft conflicts with OSD clause 3, which requires derived works be allowed to be available under the same terms of licence as the original software, since the Google licence is not sub-licensable. "Once again we're left with our fingers crossed," notes Phipps, "Google's making the right noises, but this draft agreement seems like a particularly unworkable approach for free and open source software."

Google is trying to establish WebM and VP8 as the default video codec for HTML5 and make it a standard of the ISO MPEG group. In the past it has asserted that the codec was unencumbered by third party patents and suited for use as a standard over patent-encumbered standards such as H.264. The MPEG LA patent pool searched for patents that VP8 may have infringed and, ultimately, Google decided to enter into an agreement with the patent pool. Nokia has also made a declaration to the IETF saying it has 64 patents that it believes VP8 infringes. The company adds that VP8 "offers no advantages over existing, widely deployed standards such as H.264 and infringes Nokia's intellectual property" and will not license any of those patents. Even if Google can make its licence agreement compatible with the open source definition, it still has a number of obstacles to overcome if it wishes to see it incorporated into standards.

See also:

Simon Phipps is the new OSI President, a report from The H.



(djwm)