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Except that open source and free software can't (legally) do that.

Both HEVC and H.264 require the patent holders to be paid in order to be allowed on either a device or content.

Right.... so an open source program/device might only offer VP8. While Apple could offer both H264/HEVC and VP8, preferring the former.

They could, but as discussed in this thread, they won't. This means chromium, for example, will not be able to webrtc video with Apple devices.

Cisco provides a fully licensed encoder, OpenH264, that you can download for free (Firefox uses it). That loophole was removed for H.265, though. I would have rather had only VP8 mandatory to implement in the standard, but at least this situation is better than the reverse.

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