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Old 21st August 2010, 17:07   #41  |  Link
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I wasn't aware of it. Thanks for that:

http://www.google.com/search?q=nero+...x=&startPage=1

In any case, if MPEGLA is somehow defeated then the primary patent holders will need to be addressed directly.
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Old 21st August 2010, 17:10   #42  |  Link
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that would be a problem... a HUGE problem...
http://newteevee.com/2010/05/25/nero...m=recent-posts
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Old 21st August 2010, 18:03   #43  |  Link
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I Am Not A Lawyer, so take everything here with a mountain of salt. This is just my take, so feel free to correct me.

The part of the license that's relevant for ffmpeg's case says that you have to potentially pay royalties whenever you "Sell AVC Products", where the license defines:
Quote:
AVC Product(s) – shall mean any product or thing in whatever form which constitutes or contains one or more fully functioning AVC Decoder(s), AVC Encoder(s) or AVC Codec(s). AVC Product(s) shall not include OEM AVC Products.
AVC Codec(s) – shall mean any single product or thing which incorporates the full functionality of both one AVC Decoder and one AVC
Encoder. Any single product or thing which incorporates more than one AVC Decoder and/or more than one AVC Encoder shall
constitute more than one AVC Codec.
AVC Decoder(s) – shall mean a decoder used to decode AVC Video.
AVC Encoder(s) – shall mean an encoder used to create AVC Video.
Sale (Sell) (Sold) (Seller) – shall mean any sale, rental, lease, license, copying, transfer, reproduction, Transmission, or other form of
distribution of an AVC Product or the Transmission by any means of AVC Video either directly or through a chain of distribution.
So, as you can see, Selling (capitalized) also includes free products. (Which you already probably knew from the Mozilla thing.)

But more importantly, it says a Product is "fully functioning AVC Decoder(s), AVC Encoder(s) or AVC Codec(s)", which source code is not. (I guess.)

However... as far as I know, the license is essentially a contract between you and MPEG LA, so the license terms might not even be the same for everyone. (EDIT: As in Nero's case, where they apparently made a special agreement regarding the trial versions.) Meaning, it doesn't technically even matter what the license terms are if you don't make a license agreement. If you don't have a license, like ffmpeg as far as I know, the only question is: "Will they sue you?"

In the strictest sense, to be safe from litigation, every single entity that ever deals with H.264 in any way should make a license agreement with MPEG LA even when you don't have to pay royalties because of small quantities, or you are not even doing anything covered in the license. (Again, since the license doesn't apply until you actually have it.)

Then, speaking about legality... "legal" and "illegal" are not very well defined here. The fact a company has a patent on something and says "you can't do X", doesn't mean that's how it goes. (Like the Nero case just mentioned. Or the Bilski case(s).) As we've seen from many court cases, having a patent doesn't automatically mean the patent even holds in court and even if it does, it might not mean you can't do X. Usually however, the threat of potentially very costly legal case is enough to make people obey.

MPEG LA claims it (or the companies it represents) holds essential patents in 57 countries. But it's not given those patents will hold in court, especially in countries where software patents are frowned upon. (I bet they still do have what are essentially software patents in those countries too.)

All in all, these things are so convoluted the boundary of "What's legal?" is very, very vague and when the push comes to shove, the vague parts of the border are mostly defined by the perhaps even more important question: "Who has more lawyers?"

So neuron2, "they'd never sue us because..." is what every single legal entity has to evaluate whenever they do anything related to H.264.
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Old 21st August 2010, 18:24   #44  |  Link
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Originally Posted by poisondeathray View Post
Sorry if this is a dumb question , but is there a distinction between commercial distribution and non-commerical ?
That's depending on the laws of the country you live in. E.g. the german patent law 11 says:

Quote:
"The effect of the patent does not extend up

1. Actions, which are made within the private sector for not-commercial purposes;"

...
So here in Germany, all those patents the MPEG LA holds, do not forbid anyone to use the patented methods for non-commercial, private purposes at all.

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Old 21st August 2010, 19:08   #45  |  Link
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Is the license needed even if the binaries are only provided in regions that don't have software patents (we are talking about a pure software en/decoders here)? If yes, on what basis?
No. For patents. But it may be an YES for the copyright, assuming your country signed the Bern convention (there are a handful that didn't sign it).

The patents require a final product that is a commercial product, and any product that is delivered as a "kit of parts" and/or not sold does not qualify for this.

But ask your attorney to be sure.
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Old 21st August 2010, 19:49   #46  |  Link
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neuron2 i blame you for being uninformed on the source code/binary distinction.

I'd like to know what Dark Shikari can add to this story.
He's words often seem correct rather then incorrect.
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Old 21st August 2010, 19:55   #47  |  Link
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Specifically regarding DiAVC supplied by schweinsz in China (rather than by me), the situation is murky because the software patent rights in China are very narrow. For example, a "pure SW" product is not patentable. MPEGLA would have to test this in court in China if they wished to go after DiAVC. There's a good chance that they would not prevail.
In fact it's almost a certainty that they would not prevail.

If you didn't develop it in China, you can't patent/copyright it in China. Software or hardware, it doesn't matter. Something that can be clearly marked as the Core of H264 technology needs to be developed in China for anybody to have any way of enforcing it there. I don't believe that this is the case.

This is the reason many companies maintain design centers in China, so they can acquire/defend patents on products manufactured by Chinese outsourcing plants. Those that don't get no protection from clones and other copy-cats.

If DiAVC is indeed developed in China by a Chinese citizen, no one can go after it without major re-work of Chinese patent/copyright law, which in turn is highly unlikely. They could try curtail distribution of it in other countries (if it gets too big/popular )
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Old 21st August 2010, 21:30   #48  |  Link
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I agree with bob0r, I'm pretty sure most of the ffmpeg developers (like Dark Shikari for example) are aware of its legal standing and that's why ffmpeg is distributed in such a way.
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Old 22nd August 2010, 00:17   #49  |  Link
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No. For patents. But it may be an YES for the copyright, assuming your country signed the Bern convention (there are a handful that didn't sign it).
Copyright only comes in question if I'd be using actual code owned by MPEG-LA. As far as I know, no part of ffmpeg (or x264) uses any MPEG-LA code - the copyright holders are different, and they licensed the code under the GPL and/or LGPL licenses.
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Old 22nd August 2010, 08:33   #50  |  Link
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Originally Posted by Astrophizz View Post
I agree with bob0r, I'm pretty sure most of the ffmpeg developers (like Dark Shikari for example) are aware of its legal standing and that's why ffmpeg is distributed in such a way.
No, FFmpeg is not aware of their legal standing. Straight from their legal page:
Quote:
Q: Does FFmpeg use patented algorithms?
A: We do not know, we are not lawyers so we are not qualified to answer this. Also we have never read patents to implement any part of FFmpeg, so even if we were qualified we could not answer it as we do not know what is patented.
Simply put, FFmpeg doesn't know if they are in violation or not.
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Old 22nd August 2010, 14:07   #51  |  Link
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Isn't the whole point of calling the patents "essential" that you can't make a H.264 decoder/encoder without violating them?
I'm pretty sure they know they are in fact most likely using algorithms covered by the patents, but again, it's better not to make legal claims like that when you're not qualified to make them.
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Old 22nd August 2010, 14:19   #52  |  Link
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Following up on the queries about DGMPGDec...

I do not supply binaries at neuron2.net. Users have to build it themselves or find the binaries elsewhere.

The AVC licensing has the 100,000 unit cutoff, under which no royalties are payable. The MPEG2 licensing requires a $2.50 royalty per unit without any cutoff! That is a terrible potential liability given that DGMPGDec is supplied free and is widely used.

I'd be interested in hearing from any possible binary hosts in non-liable countries.
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Old 22nd August 2010, 15:04   #53  |  Link
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What most people seem to forget is that patents have to be granted in every single country. So before they can sue anyone in that country they have to get the patents granted or otherwise they have nothing to sue about. So aside from the non commercial part I don't think that the MPEGLA companies hold any patents in Germany (or China).

And with the source code and binary distinction you could publish the source code as a book to export and spread as in the 80s and 90s for encryption software.
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Old 22nd August 2010, 15:17   #54  |  Link
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Nice to see this is being discussed.
IMO, there are a few solutions for h264 related distribution becoming legal:
1) Every binary distributor registers with the MPEG LA and only allows 100,000 downloads per year.
2) Someone registers with the MPEG LA, creates a page, where people can register for free. With the registration, they "buy" a h264 licence, so I guess at least updates can be distributet for free. So one person can supply 100,000 Persons with h264 licenses.
Ideally one could create a platform, where more then one distributor supplies binaries, so distributors don't have to create a page on their own. Every distributor had to aquire a license and could support 100,000 persons again.
Note: IIRC Betaboy once claimed, they had to pay licenses even for updates, but I don't trust that statement. Someone should ask the MPEGLA about that though.
3) The Gentoo way: Distribute only the source with a script that builds the binary automatically. Thats of course a bit of a hassle for small things like x264. But ffmpeg has far bigger problems then the h264 license, they distribute many codecs without license and it would be quite a big problem to gain them all. So for those projects it would probably be the best solution.
4) If a distributor lives in a country that doesn't have software patents and he hosts his stuff in a country without software patents, he can safely distribute copies to people living in countries without software patents. If the distributor is allowed to distribute the software to US people is up to a court. He is probably not allowed to export it to the US, but if a US citizen "buys" it in another country and imports it to the
US, its probably legal. I don't know of any court decision about a similar things though.

IMO for x264 and similar, solution 1 & 2 would be the best. For ffmpeg solution 3 would be the only viable thing.
Projects like Megui that distribute ffmpeg code IMO only have solution 3 or 4.

On a side note: The h264 license costs a maximum of 0.20$ per license. So it might even be possible to distribute more then 100k licenses on an advertisement basis.
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Old 22nd August 2010, 15:27   #55  |  Link
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i don't think gpl is compatible with mpeg-la license
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Old 22nd August 2010, 15:44   #56  |  Link
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i don't think gpl is compatible with mpeg-la license
Can you elaborate on that please?
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Old 22nd August 2010, 16:02   #57  |  Link
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You are probably right quantum. If you receive for instance x264 in the USA from a MPEG licensed distributor, you are not allowed to distribute the binary at will, because you need an MPEG LA license and after 100k copies, you have to pay them. So the licenses are incompatible. But under that premise, its impossible to distribute GPLd h264 binaries in the USA legally. Unless you do what DarkShikari did, ask every code contributor for the permission to commercially distribute the software, so you dual license the software: GPL for everyone who doesn't care about patents, and a second license together with an mpeg license for those who care about patents.
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Old 22nd August 2010, 16:14   #58  |  Link
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This is a crystal-clear case which shows that software patents kill innovation and favour monopolies.
The legislation which regulates this matter should be heaviliy revisited.
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Old 22nd August 2010, 16:14   #59  |  Link
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So the licenses are incompatible.
They are not incompatible. You just have multiple responsibilities to bear.
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Old 22nd August 2010, 16:17   #60  |  Link
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GPL says if you get the software you are free to distribute it for free. Thats not the case in the USA, so they are incompatible.
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