Comment by mmastrac | Hacker News Reader

Comment by mmastrac | Hacker News Reader

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You can implement it, but you are not free to distribute your implementation in binary form, and users are not free to use your algorithm without the consent of the patent holders. That is the definition of proprietary. Regardless of the availability of the specification and full, compliant implementations, you are not free to distribute this code in the United States of America.

Microsoft has a patent on the openly-spec'd FAT filesystem and are still pursuing royalty agreements with distributors of FAT code:

http://arstechnica.com/microsoft/news/2009/02/microsoft-sues...

If software patents were removed from the picture in the USA, H.264 would cease to be a proprietary algorithm.

Edit: I'm updating this because the reply markers are slowed down to flamewar levels. :)

Re: consent of the patent holders, this is guaranteed by the MPEG LA but only in return for royalties paid. You need their permission, which is granted only by paying the royalty.

users are not free to use your algorithm without the consent of the patent holders.

This is not true. The patent holders signed an agreement when creating the standard that requires them to license to you under reasonable terms. As far as I know, they cannot refuse. This is how the process is carried out for many international standards: nobody wants to risk one of the patent holders going rogue.

This is in contrast to something like FAT, which was created by Microsoft, for Microsoft, and is controlled entirely by Microsoft.

Quite honestly, I think many of the companies involved would welcome the end of software patents. The amount of legal wrangling they go through in order to avoid legal problems is tremendous, and for H.264, the fee is a mere 10 cents per unit for bulk licensing with a relatively low cap. Hardly enough income for them, IMO, to justify the hassle created by software patents.

re: H264

Not all standards bodies require RAND terms, and not all RAND terms are 'reasonable' for individuals. You have to look into each standard and then to the assigned licensing agencies and what they charge for.

In the case of H264, the patent pool is licensed by MPEG-LA, and they're anything but free.

Here's the overview of the broadcast licensing terms:

http://www.streamingmedia.com/article.asp?id=10900

more data about licensing can also be found in the Wikipedia article:

http://en.wikipedia.org/wiki/H.264/MPEG-4_AVC

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