According to the FSF's definition of software freedom. The FSF has quite a radical view in this regard. A Microsoft exec once described the GPL as "viral' [1] and it's a fair point. Many view licenses like MIT and Apache as being more free simply because they're not as restrictive.
This ambiguity is more pronounced when you use words like "open" because it means different things to different people.
So it would be more accurate to say that H.264 is incompatible with the FSF's idea of software freedom.
> if it gets entrenched
What do you mean "if"? It already has.
> Why wait until a fiasco?
Because anyone who writes software knows that writing code to solve problems you may never have is a recipe for wasted effort if not outright disaster.
It's a bit like the standoff between the (former) Soviet Union and the USA: not a single shot was ever (directly) fired between the two but the threat of escalating conflict kept them in check (resulting in proxy conflicts in Korea, Vietnam, Afghanistan, etc but I digress).
Think about it this way: MPEG-LA could announce tomorrow that licenses now cost $1 trillion. The result? Obviously no one would pay and a new standard would arise pretty quickly. What if it was $1 billion? $100 million? The point here it is simply a question of degree.
So what keeps (and will keep) MPEG-LA in check is market forces, the limits of what people can and will pay and the threat of a free or cheaper alternative... much like any market. Switching formats is a process that can be automated so the transition cost isn't really that high.
[1]: http://en.wikipedia.org/wiki/GNU_General_Public_License#Vira...