VP9 exists, is better and free (in Chrome, will be in Firefox release in a few months)
There is still ongoing work to create a better, encumbered codec, h.265
There is going work to create a much better, free codec, Dalaa
Now is a good time to finally break free of encumbered video codecs. If not now, when. :)
The other possibility for the Free next generation solution is if H.265 licensing is unreasonable (as H.263 was and H.264 wasn't).
For the current codec generation the ship has sailed, the deployed base of H.264 devices means the battle is over.
[Edit: replaced 'open' with 'Free']
* At scale H.264 is crazy cheap. It costs $6.5 million for YouTube to serve 72 billion hours of video. Still, it is infinitely more expensive than free.
Agree H.264 is cheap but I think you underestimate how cheap. Internet delivered video that is not subscription or pay per view is free!
http://www.mpegla.com/main/programs/avc/Documents/avcweb.pdf
I'm actually sceptical that VP9 will be good enough and patent safe enough to dislodge H.265. From what I've read about Daala I suspect it will too late to the battle. I suspect hardware support for H.265 is already well under way that a convincing improvement would be necessary to stop H.265 dominating the next decade. The advocates for Free codecs need to forget about H.264 and focus on a compelling argument to beat H.265 and get their chosen answer into hardware developments NOW. In 12 months it will be too late if it isn't already.
That doesn't mean I don't appreciate the development of these and other codecs, they are a factor in keeping the license prices reasonable.
But I suspect you're right about VP9/H.265 decisions being made now, and royalty free alternatives keeping prices down even when the alternatives don't win a lot of market share (could say the same about the never-winning "linux desktop" -- it gets negligible seats, but may have shifted $$$ from Microsoft profit to consumers over the years).
I don't think VP9 can win the current fight to be honest. I doubt it is patent free, or good enough. I also wonder if Google can cooperate in the way required to build support for it outside of its Android family.
2) MPEG LA doesn't have patents they invite patent owners to contribute them to patent pools for a cut of revenue. Where companies have not been involved with the development of standards they are not obliged to license them on FRAND basis so there is more reason not to join a pool. Nokia at least is in the pool for various MPEG standards but not VP8, there may be others waiting to troll if large scale use occurs.
3) Nokia hadn't joined the VP8 pool and was actually using a VP8 relevant patent against an Android manufacturer. I don't know the current status of this case but if you have a link to recent news I would be grateful.
2) Yes, that's why agreements with the MPEGLA are actually with the member companies (as mentioned in [1])
3) That was Nokia asserting against HTC three times. The first one was dismissed, the second one was rejected[2]. I'm having trouble finding any information about the third (which is at the ITC, not in a court), so it may still be ongoing.
[1] http://www.mpegla.com/Lists/MPEG%20LA%20News%20List/Attachme...
[2] http://www.osnews.com/story/27245/VP8_does_not_infringe_on_N...
1) According to that link the VP8 patents are licensed for use in VP9 (which I had forgotten or didn't know) but there is still the possibility of new patent from existing licensees in addition to additional patent holders coming forwards.
3) The reference you give is to one of the patents but there are more than one involved. As far as I know it is still an ongoing open issue.
Thomson created what is essentially an MP3 license pool, and yet, Sisvel cleaned out Cebit (one of the larger electronics fairs) booths every year (with the help of German customs) because some asian vendors showed unlicensed MP3 players.
It's still possible that some non-MPEGLA party stumbles over a patent that covers some tiny aspect of h.264.
VP8 has not been widely deployed (at least in hardware) to anything like the same extent so the possibility of lurkers is greater.
Getting products pulled from Cebit (and German Customs helping) is for me a completely wrong on so many levels I can barely describe (at least if the products weren't for sale to the public).
Having VP8/9 support shipping on those devices is a major (though probably not fatal) blow to H.264 and 5 and will probably weigh heavily on the minds of the people currently figuring out how much they can charge for H.265 patents.
Though personally I think H.264 (particularly x264) being "good enough" and massively deployed might be a bigger issue for H.265 uptake.
just replace mpegla with google.