Fantastic article. This is one of very few entries on this debacle that is actually informed and insightful.
However, there is one rather large oversight:H.264 is an open standard
This is not necessarily correct. As a citizen of the EU, I have to disagree. One of the EU pre-requisites[1] for something being qualified as an Open Standard is: The intellectual property - i.e. patents possibly present - of (parts of) the standard is made irrevocably available on a royalty-free basis.
[1]: http://en.wikipedia.org/wiki/Open_standard#European_Union_de...
That's not true, unfortunately.
There may have been no lawsuits (I can't comment on that, though I'd like to see your data). But that's just because the MPEG-LA hasn't felt like suing people. If you're shipping an H.264 encoder or decoder in binary form to people and not paying the relevant licensing fees, then you're infringing on the patents. There's no exception for "non-commercial" use there last I checked. If you think there is, please cite.
Somebody will come up something similar to the hack/exploit that Mozilla did: set up a for-profit corporation to receive money and a non-profit foundation (which owns 100% of corp's shares) to do the development. Then they can claim that the non-profit foundation is the one that's really using the patents and hence should not have to pay royalties.