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Comment by saidajigumi | Hacker News Reader

> NO! WRONG! tl;dr NO CODE IS BEING RELEASED AS BSD!

Then please cite a source that backs that up. Bothering to follow the links from the Mozilla post indicates you are dead wrong:

    We plan to open-source our H.264 codec, and to provide
    it as a binary module that can be downloaded for free 
    from the Internet. -- [1]

    [...] The source code will be open source and distributed 
    with a BSD lIcense. The binary module is separate and 
    when the users software downloads it from Cisco, that 
    is when we are responsible for paying the MPEG LA 
    royalties. – Nadee Gunasena, Cisco PR [2]

[1] Cisco blog: http://blogs.cisco.com/collaboration/open-source-h-264-remov...

[2] Comment on same: http://blogs.cisco.com/collaboration/open-source-h-264-remov...

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So it's BSD license but you don't get the mpeg-la license if you build it yourself, because it's covered by cisco's capped binary distribution license with mpeg-la.

So "it's open source, but you can't use what you build".

IANAL, but you can use it if you build it yourself, and even up to some small-ish scale (100k users? check with the MPEG LA). Do get your own legal advice.

As someone tweeted at me, BSD is a free/libre license, but it lacks an explicit patent clause, so BSD-licensed code may well not be free as in speech. Hence my use of gratis to describe what Cisco will release, both source and binaries.

/be

MPEG-LA is unlikely to sue small open source users due to the regulatory environment, but i'd rather not rely that.

BSD lacks a patent clause, but the vast majority of open source lawyers believe there is an implied patent license, so this is normally not an issue.

It is in this case, sadly.

I agree that your terminology is probably a better description of what is happening here.

> BSD lacks a patent clause, but the vast majority of open source lawyers believe there is an implied patent license, so this is normally not an issue.

What? Where did you hear such a thing?

1. I'm an open source lawyer. This has been gone over many times at legal conferences, private and public mailing lists, etc.

2. Ask any others :)

Think of it this way: Your argument for giving someone a BSD licensed piece of software and then suing them over patents in it is "Yeah, I explicitly granted them the right to "freely redistribute and use it", but i didn't really mean for them to be able to do so"

At least in the US, roughly every open source lawyer i've met, believes a judge would have no trouble finding an implied license.

The only question is usually one of scope, and one of whether it would include sublicensing.

> Think of it this way: Your argument for giving someone a BSD licensed piece of software and then suing them over patents in it is "Yeah, I explicitly granted them the right to "freely redistribute and use it", but i didn't really mean for them to be able to do so"

Lawyers are a conservative bunch. So I'm sorry, I just don't believe that a lawyer would be so rash as to allow his client to expose himself like this.

But let's get down to brass tacks. Has there been any significant case law supporting this position?

A. We are not all conservative, we are risk managers. That is not the same. In this case, the risk is low. As for "allow a client", i think you are confused. Lawyers analyze and assess risk and legal implications. We tell this to the client. The client gets the final say, and makes business decisions. If you live in a world where you need a lawyer's permission to "expose yourself like this", i suggest you run :)

B. Yes. A lot, at least in the US (other countries, more questionable). The general principle you are looking for is "legal estoppel". You don't get to promise people they can use something, and then try to stop them legally when they do. This is true whether it's patents or contracts. While most deals of the patent cases deal with sales, the case law is fairly clear on this exact point (IE that unless you explicitly disclaim an implied license, you won't get to give something to someone to use and then claim using it violates your patents). It just would be legal estoppel for a different reason other than sale.

you even cite the source but can read the paradox on "open source [...] and provide a binary blob"? Read the response from Firefox to understand. If you are not a coder, than i apologize and provide a car analogy :) they are giving out cars with the engine bay shut, but they are providing 3D files under BSD license so you can print a glove and a shoe to use when driving the car. And the shoes and gloves are so bad, the the mozilla driver said he will just sew his own and use the car for free, which he still has no idea which engine it is using or what fuel it takes.

as i said, no "significant code" will be provided. The code they are open sourcing is HEADER FREAKING FILES for the entry points on the binary blob.

It is the exact same thing as nvidia provides. and nvidia even provides the header files as GPL! so let's all go buy nvidia drivers as they have GPL OPEN SOURCE DRIVERS PROVIDED BY NVIDIA! huray!

FAQ[1] implies this is not the case, and that the source will correspond to the binary. The only thing the binary will bring that the source itself will not is the MPEG LA licensing.

> Q. Why is Cisco making both source and binary versions available?

> A: The source code is available so that an implementation of H.264 is available for the community to use across any project, and to leverage the community to make the codec better for all. We will select licensing terms that allow for this code to be used in commercial products as well as open source projects. In order for Cisco to be responsible for the MPEG LA licensing royalties for the module, Cisco must provide the packaging and distribution of this code in a binary module format (think of it like a plug-in, but not using the same APIs as existing plugins), in addition to several other constraints. This gives the community the best of all worlds - a team can choose to use the source code, in which case the team is responsible for paying all applicable license fees, or the team can use the binary module distributed by Cisco, in which case Cisco will cover the MPEG LA licensing fees.

[1] http://www.openh264.org/faq.html

Ah ok, so they are pretty much making a bad implementation public so it is easier to sue open source alternatives since now they can't deny seeing the code... nice move.

I think you're confused here. Let me try to explain with an example. Mozilla provides sources and binary blobs both. The latter in no way negates the former.

Cisco will be providing sources and binary blobs both, and the latter in no way negates the former.

Yes, there's "a catch". The catch is, though you get a BSD code license on the source that allows you to redistribute the the source, you do not get a patent license for shipping products based on that source. The only patent protection you can get from Cisco is from their specific binary.

Cisco's isn't the first open source H264 codec and it won't be the last, but it's the only one that comes with patent help and that's what makes it different from the others.

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