Hey buddy, ya want to buy an algorithm?

June 7, 2007 11:57 PM

What is the legal status of the XviD codec libraries, ffmpeg, and/or other F/OSS programs that implement the (patented) MPEG-4 algorithm?

The libraries I linked to are distributed under the GPL or LGPL, but it's clear that because of the patents that apply to MPEG-4 that the software is of somewhat dubious legality in the US. Most of what I've found online consists of either academic debate or an almost comical disclaimer. I haven't been able to find any clear description of what is and isn't legal with regard to this sort of software. Can a user in the legally use it to decode files? encode files? Modify and redistribute the source code?

I'm primarily interested in the US, but data points from other countries would probably be interesting, too.

posted by toxic to technology (5 comments total)

My understanding, and IANAL but I have done some research, is that it's not "illegal" in the same sense that robbing a bank, or even something like DeCSS [1], is; the reason people avoid it is because of the liability. Since the technology that they implement is encumbered by patents, it's possible that the holders of those patents could sue you for infringement -- and in the U.S., knowingly infringing someone's patent makes you liable for triple the normal level of (already usually punishing) damages.

The chances of the companies who own patents on this stuff deciding to sue you, Joe User, for infringement is pretty low. However, if you used XviD to build some piece of technology which you then sold and made money off of, or even got some VC funding for, then you'd be in trouble, potentially. Or if you bundled the software into a Linux distribution and sold it, you could potentially be pretty screwed -- which is why RedHat, et al, don't do it.

I can't speak with confidence to the legality or illegality of the software outside of the U.S., but I'd imagine that it's A-OK in regions that don't allow software patents at all, which includes most of the rest of the world.

Now, and here's where you're definitely in consult-a-lawyer territory: it's my understanding that the recent USSC case between Microsoft and AT&T clarified that a U.S. corporation isn't liable for "infringement" that occurs outside the U.S.'s jurisdiction -- so if you were (hypothetically) a Linux distributor like RedHat, I think you'd be OK making two versions of the software: one for U.S. distribution and one for international distribution, the latter of which contained patent-encumbered free-software components. (You might have to actually add the components outside the U.S., too, so that there wouldn't be any "infringement" going on in the U.S.) To my knowledge, nobody has really tried doing this.

[1] DeCSS is illegal in the U.S. because it's a 'circumvention device' for a DRM system, due to the oh-so-wonderful DMCA. It's entirely possible that it also violates a patent or two in the process, but it's the less significant of the two issues, usually.
posted by Kadin2048 at 12:16 AM on June 8, 2007

I think you'd be OK making two versions of the software: one for U.S. distribution and one for international distribution, the latter of which contained patent-encumbered free-software components. (You might have to actually add the components outside the U.S., too, so that there wouldn't be any "infringement" going on in the U.S.) To my knowledge, nobody has really tried doing this.

Debian non-us (not in the U.S.A) was designed to get around cryptographic import/export laws that (thankfully) no longer apply. It was basically the same thing that you're describing.

So as not to be a complete derail, AT&T did file suit against other similar codec manufacturers, asking for royalties. You, as the end user might be indemnified, with the liability being assumed by the distributor, but IANAL and could be completely full of it.
posted by stovenator at 12:35 AM on June 8, 2007

So far, the best resource I've found on this question is Microsoft's MPEG LA License for MPEG-4 Video FAQ.

Here is their “general summary of the royalties and rights in the license”:

The royalties and rights in the license are:

• Manufacturers pay royalties for the right to make and sell decoders and encoders.
• Personal codec use and user-to-user communications are covered as part of the manufacturer’s license.
• Video providers do not pay royalties unless MPEG-4 visual material is provided for remuneration.
• Whenever MPEG-4 Visual material is provided for remuneration, video providers may be required to pay royalties for the right to use the decoders and encoders in the following circumstances:
  • MPEG-4 Visual material is provided for direct remuneration (for example, remuneration is from a user for a subscription or specific titles).
  • Remuneration is from other sources (for example, free over-the-air broadcasting).

When video is delivered via the Internet to a user without charge, no royalties are payable during the first term of the license (ending December 31, 2008), but you still need to obtain the license.

The licenses of the software you are presumably using with Xvid and others are probably all “educational” licenses and which don't allow you to distribute encoded content. So even though you may be able to distribute encoded content without paying any fees, you'd still need to be using an encoder that you (probably) paid for which has a license allowing the consumer to distribute content created with it. Otherwise, I don't know if you'd be breaking the law, but you'd be liable for damages in a civil suit or something like that. Whether anyone would ever notice and sue you is another matter, of course.
posted by Ethereal Bligh at 12:38 AM on June 8, 2007

A lot of OSS software lives in this grey area of infringing on patents. I think the only thing keeping the shit from hitting the fan is corporate goodwill. Every so often you'll hear about patent immunity agreements. The linux kernel itself potentially infringes on a number of software patents and a whole distribution may infringe on over 250.

I don't see why xvid is necessarily that different. Essentially the daggers are drawn, but no one is willing to make a move. Yet. Arguably, some believe a high profile take-down would fuel the anti-software patent sentient in the US.

Its also impossible to decide what may be legal or infringing without a proper trial, thus all the disagreements and theorizing. Its pretty safe to assume something that more or less clones a proprietary product (even with reverse engineering) most likely is infringing.
posted by damn dirty ape at 8:28 AM on June 8, 2007

Its pretty safe to assume something that more or less clones a proprietary product (even with reverse engineering) most likely is infringing.

It is pretty much unsafe to assume anything, actually. When reading a bit about the blackberry patent case, it seemed as though large factors in RIMs loss were were technical mistakes and outright belligerence in the courtroom, rather than the patents in question actually being valid.

Patents are mostly a fiction. Interpreting the existence of prior art is entirely subjective. To large companies, patents are far more important as marketing tools and bargaining chips than for the legal protection.

I have often wondered if patents aren't also important as a barrier to entry for small players. A way for larger companies to bully competition out of the market. The OSS situation seems to fly in the face of that notion, but I'm not convinced that that invalidates the argument in general.
posted by Chuckles at 12:11 PM on June 8, 2007