Why Our Civilization's Video Art and Culture is Threatened by the MPEG-LA
osnews.com
osnews.com
Given that there is a desire for using royalty free video coding technologies for some applications such as video distribution over the Internet, MPEG wishes to enquire of National Bodies about their willingness to commit to active participation (as defined by Section 6.2.1.4 of the JTC1 directives) in developing a Type-1 video coding standard. (Source: http://www.robglidden.com/2010/04/mpeg-resolution-on-royalty... )
Notice that they mention distribution over the Internet. MPEG has less potential competition in the broadcast sector.
You can't use a patent without a licence, this text is simply informing you what patent licence is included with the purchased software or hardware. The vendors of that hardware and software are likewise only passing on the rights that they have licenced. If it didn't include a licence at all (like if you'd downloaded Handbrake or x264) then you'd be violating a patent. If you go beyond a provided licence then you're infringing on the patent too.
(And pre-empting the MPEG patents don't apply in Europe/Germany argument, you might want to ask why Aldi and Lidl just got sued by the MPEG-LA over MPEG 2 patents).
And this kind of clause is simply void under German law, because if you buy something, it's a contract between you and the seller, and this kind of contract is not allowed to contain arbitrary limitations on how you can use the thing you have bought, nor can the seller impose an implicit additional contract between you and some third party on you.
This is not asking for agreement, and the government of Germany has already imposed the implicit additional contract by granting a patent monopoly, the only purpose of which is to restrict the behaviour of others.
The text is only giving back what German law has already taken away, the ability to use these 900 odd bits of mathematics, but only for personal, non-commercial reasons. If you want to use it commercially you'll need to negotiate another licence.
§ 307 content control (1) Bestimmungen in Allgemeinen Geschäftsbedingungen sind unwirksam, wenn sie den Vertragspartner des Verwenders entgegen den Geboten von Treu und Glauben unangemessen benachteiligen. (1) Provisions in standard business terms are invalid if the contractor of the user to meet the requirement of good faith and unreasonable disadvantage. Eine unangemessene Benachteiligung kann sich auch daraus ergeben, dass die Bestimmung nicht klar und verständlich ist. An unreasonable disadvantage may also result shows that the provision is not clear and understandable. (2) Eine unangemessene Benachteiligung ist im Zweifel anzunehmen, wenn eine Bestimmung (2) an unreasonable disadvantage is in doubt, be presumed if a provision
1. 1st mit wesentlichen Grundgedanken der gesetzlichen Regelung, von der abgewichen wird, nicht zu vereinbaren ist oder with essential basic principles of the statutory scheme that deviates from the not compatible, or 2. 2nd wesentliche Rechte oder Pflichten, die sich aus der Natur des Vertrags ergeben, so einschränkt, dass die Erreichung des Vertragszwecks gefährdet ist. essential rights or obligations arising from the nature of the contract, so restricting that the purpose of the contract is at risk.
(3) Die Absätze 1 und 2 sowie die §§ 308 und 309 gelten nur für Bestimmungen in Allgemeinen Geschäftsbedingungen, durch die von Rechtsvorschriften abweichende oder diese ergänzende Regelungen vereinbart werden. (3) Paragraphs 1 and 2 and the § § 308 and 309 apply only to provisions in general terms and conditions that may be agreed upon by law, additional or different provisions. Andere Bestimmungen können nach Absatz 1 Satz 2 in Verbindung mit Absatz 1 Satz 1 unwirksam sein. Other provisions may be invalid under paragraph 1, sentence 2 in connection with paragraph 1, sentence 1.
This is a pretty common error of legal reasoning. For one thing, the definition of "commercial video" that Creative Commons asserts is just a definition it made up; only a court can actually determine what the term means. (I am unaware of any cases deciding this; if they exist, please let me know of them.)
And at any rate, the definition of "commercial video" in a CC license has no necessary bearing on the definition of "free to stream" in the MPEG-LA license. They are not the same document, and the same term in two different contracts can have entirely different meanings.
Somehow it's only the freetards that respect Patent law to the letter — they may be campaigning to dismantle it, but in the process they've been consistently acting as it's biggest cheerleader by licking its boot heel in toadyish submission.
It's just like how the hackers that campaigned to dismantle the export restrictions on crypto in the 90s are the exact same people currently shouting down the ability to use crypto for practical purposes: they want hardware key escrow, DRM, and signed firmware to all be effectively illegal. I don't think ideologues are capable of understanding irony.
Freedom is rigorous self-enslavement to other peoples' patents. Ignorance of the state of the art is strength!
If ever there was a case where the exercise of Eminent Domain by government was required to prevent a tragedy of the commons from developing, this type of thing is it.
They aren't directly hurting anyone's bottom line, nor is anyone really profiting from it. It's just a bureaucracy for FUD-maintenance, that was originally created to keep its members from fucking with one another.
If anything really gets out of hand, the government will just force them into a more liberal patent pool — it was done before to the Wright Brothers for being dicks, and in wartime to quasi-nationalize military IP.
The answer isn't for everyone to go back to the dark ages of mjpeg, it is to convince MPEG-LA to be reasonable.
So, what's not troubling to me is not the possibility of MPEG-LA suing everybody, but rather just suing people and companies they don't like (i.e. competitors, detractors, etc.), since virtually everybody making a corporate training video with an H264-based camera is violating the camera's H264 license.
This is what the "non-discriminatory" part of the "reasonable and non-discriminatory" licensing terms that ISO/ITU require of their participating members is about.
Then how do they discriminate here? I don't know, but it's not dictated by RAND terms which are often not reasonable either. Currently they also discriminate against smaller companies due to yearly caps on fees, and discriminate against certain business models e.g. subscription TV pays distribution fees, ad supported Hulu doesn't. That last one is clearly a decision made to mess with competition in a market with fewer barriers to entry while cementing lock-in in other areas.
http://news.ycombinator.com/item?id=1306309
That's not hyperbole, and it's not the same as chasing RAND patent fees on standards as they have previously done. They're just patent trolling the same as any other non-practicing entity. Currently suing HTC, RIM and Apple for smartphone patents.
The solution, as noted already in this thread, is for governments to ban fees on standards, just as they currently don't allowy non-RAND fees on standards. China is pushing heavily for this and MPEG are at least appearing to consider it:
Huh?
What law says that if a standards body choses a technology, the patent owner must RAND?
If that were actually the case, folks would set up standards bodies to force RAND.
Note that the same applies to fees, only moreso.
But what I was proposing more moderate, that the governments only adopt "Open Standards" as they are known. If there's a patent identified then either the owner gives it up freely, or it is worked around.
This is the exact analogue to current systems where those involved in the standardization agree to RAND fees or the patent is worked around. This does nothing to prevent other patent holders fouling things up, but that's true of the current system too.
To make this work well you'd probably need a patent estoppel system where it is the responsibility of the patent owner to identify standards that infringe their patents rather than the other way round. If they fail to notify in time, then they'd lose the patent or at the very least the right to profit from the network effect of the standard (see this paper for details http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1134000). But it can work without that extra legal support and there's plenty of Open Standards to prove it.
For the most part, govts don't "adopt" standards. Customers do.
Yes, standards are published and "imprinted" by standards bodies that occasionally have govt members, but the legitmacy of those organizations comes from customer acceptance.
Note that customers have fairly short memories and almost no loyalty. They care about their needs. They don't actually care whether something meets an IEEE standard - they care whether it does what they want for a price that they're willing to pay. Yes, standards may help them identify satisfactory goods and help with price, but that doesn't imply that customers care about standards.
Thanks for pointing out that govts act as customers.
Yes, govts prefer standards in some cases, but I'd be surprised if it mostly was standards driven. Consider all the vehicles purchased - not a single one is "standard" and they all contain exclusively patented components.