On Submarine Patents vis-à-vis H.264 and Ogg Theora

I botched a bit of this piece the other day on H.264, Ogg, and patents when I wrote:

If some patent troll decides H.264 violates a patent, they must go to court with MPEG LA, not individual licensees.

That’s just wrong, and I regret the error. There’s nothing that would stop someone armed with a patent they believe H.264 infringes upon from suing individual licensees. DF reader Joe Shaw emailed to point out that even the users of an invention deemed to infringe upon another’s patent without permissions are considered infringers:

(a) Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.

But I stand behind my main point, which is that the patent situation surrounding H.264 is safer than that of Ogg Theora. There are two sets of patents that Ogg Theora likely violates. The first set are submarine patents that H.264 also violates. The second set are the patents in MPEG-LA’s pool for H.264.

If the holder of a submarine patent decides to sue over H.264, MPEG-LA can countersue using the patents in the H.264 pool (presuming that the submarine patent holder has some sort of video product, and is not a patent troll whose only business is extorting patent licensing fees). If the holder of a submarine patent decides to sue over Ogg Theora, Ogg Theora users are, effectively, unarmed.

As for the second set, Ogg Theora supporters can claim that Ogg doesn’t violate any patents in the H.264 pool, but MPEG-LA has stated that they believe otherwise. If Ogg Theora takes off and becomes popular, would anyone be surprised if MPEG-LA started suing Ogg Theora users for licensing fees? I’d be surprised if they didn’t.

That Ogg Theora is not patented only means that Ogg Theora’s developers will not pursue Ogg Theora users for licensing fees or assert any restrictions. It does not mean that the holders of other patents will not claim Ogg Theora violates their patents.

So if you’re willing to concede that H.264 and Ogg Theora are both vulnerable to patent claims, and wished to choose one over the other, the obvious choice (to me) would be the one that is both technically superior and is owned by a group that can ably defend itself in court, armed with patents of its own and experienced lawyers. And if you’re not willing to concede that Ogg Theora is vulnerable to patent claims, well, then I doubt you’re reading this.

To be clear, I’m not trying to scare anyone from using or supporting Ogg Theora. I still think Google’s approach in Chrome is optimal: supporting both H.264 and Ogg. It’s my intention here to indict our patent system, not Ogg Theora. But only the deluded think that Ogg Theora — and software that uses it, such as Firefox — is any more immune from patent warfare than an unarmed man is immune from bullets.

Postscript: See Thom Holwerda’s criticism of my analysis, and my brief rejoinder.