Last time i checked there a lot of video services out there with subscription/premium service.Vimeo doesn't charge to watch videos, so far as I know, and that's what triggers the licensing exemption.
But think about it, what will happen then? MS will support wmv by default, Apple will support Quicktime by default, Mozilla theora.
If HTML5 were to mandate Theora support, that part of the spec would simply be ignored by browser vendors who don't want to support Theora. Thus the mandate or lack of mandate in the spec produces no practical difference whatsoever in the end result: Apple's browsers would do H.264, Mozilla's browsers would do Theora, etc., etc.
But on a phone?
Again, it seems unlikely that anyone other than Mozilla will bother with Theora on mobile devices. Apple and Nokia have already taken pretty clear stances against supporting Theora, for example, so what good would it do to put a mandate in the spec? It'll just be ignored.
As i told you, this is not technical, it's political.
You seem to have a misunderstanding of how web standards actually work; without buy-in from the companies which will implement them, the standards might as well not exist at all. That's why HTML5 currently doesn't mandate a video codec; originally it required Theora support, but several major players basically said "if you leave that in there we're just going to ignore it".
Since this is a recurring problem with what you seem to be saying, what's your solution? Any approach to video codecs must take into account the fact that browser vendors can't be forced to ship an implementation of any particular codec, and will make their own decisions independently of what you might like them to do. As far as I can see right now, delegating to the operating system's media framework is the only way to get the sort of broad support that's needed, since those frameworks have to ship with a wide range of codecs already.
(and, honestly, the manual codec install really only turns out to be an issue with Theora; Windows and OS X both ship pretty much everything else out of the box)