After discovering and blogging about Nokia's declaration of intellectual property rights (IPRs) allegedly infringed by Google's VP8 video codec I asked Nokia for comment. The declaration itself just listed 64 granted patents and 22 pending patent applications, and stated that Nokia would not commit to royalty-free or even just FRAND licensing with respect to VP8. Meanwhile a Nokia spokesman has sent me the following response:
"Nokia believes that open and collaborative efforts for standardization are in the best interests of consumers, innovators and the industry as a whole. We are now witnessing one company attempting to force the adoption of its proprietary technology, which offers no advantages over existing, widely deployed standards such as H.264 and infringes Nokia's intellectual property. As a result, we have taken the unusual step of declaring to the Internet Engineering Task Force that we are not prepared to license any Nokia patents which may be needed to implement its RFC6386 specification for VP8, or for derivative codecs."
A few observations:
Nokia describes H.264, which resulted from the consensus of dozens of leading industry players and patent holders, as "open and collaborative", while criticizing Google's push to elevate VP8 to an Internet standard as "one company attempting to force the adoption of its proprietary technology".
Different companies mean different things when talking about "open" versus "proprietary" technology. The way H.264 was defined definitely meets all the criteria for an open standard. The process was inclusive, collaborative, and consensus-based. By contrast, VP8 was created by a single company, which Google acquired. That's the very opposite of inclusion.
VP8 is sometimes also described as an "open source" codec. But even H.264 has been implemented in open source software, and it's fully documented, so anyone can implement it. There's nothing "closed source" about H.264. There are closed-source H.264 codecs just like anyone can create, and some have created, closed-source VP8 implementations. It's not like VP8 comes with a GPL-like copyleft mechanism.
So in which ways would some argue VP8 is "open" and H.264 is not? All that you ultimately hear from VP8 supporters comes down to patent royalties. But I don't know any dictionary definition of "open" that corresponds to "free of charge". You can find millions of closed-source programs on the Internet that you can download for free (like Chrome, the browser with which I wrote this post), just like you can pay millions of dollars for program code that is actually provided to you for inspection. Wholly apart from true and twisted meanings of the word "open", even if one wanted to define "open" as "royalty-free", Nokia's IPR declaration and its ongoing VP8-related patent lawsuits (one trial has already taken place this month, another one will be held in June) suggest that implementing VP8 may ultimately prove even more costly than implementing H.264. For H.264 all the essential patent holders have made a FRAND licensing commitment, and Google itself, as a suspected FRAND abuser under antitrust scrutiny, has already experienced that U.S. courts, including Judge Posner (who ruled against Google on FRAND) and the highly influential Court of Appeals for the Ninth Circuit (who supported Microsoft against Google), consider such FRAND pledges to be enforceable contracts. No promise, thus no contract, exists in Nokia's case with respect to VP8. Nokia can demand anything or simply withhold licenses altogether.
It's not even clear how serious Google is about VP8 being royalty-free. Instead of linking to the W3C's royalty-free patent policy an email a Google employee sent to a mailing list referred to a FRAND standard.
I can relate to Nokia's objections to Google's quest for world domination. Google owns the largest video website, YouTube. It owns the market-leading smartphone and tablet computer operating system, Android. And above all, the leading search engine and online advertising business. A video codec standard of Google's choosing -- driven by a desire not to pay royalties to those who invested heavily over the years in technological progress in this area -- is not a good idea.
It's not just Nokia's concern. A famous app developer who dislikes software patents, Instapaper author Marco Arment, has also pointed out in a recent blog post that "'open' has very little to do with anything they [Google] do":
"What they're really doing most of the time is trying to gain control of the web for themselves and their products."
Google is so aggressive and its agenda poses so much of a threat to competition that even software patent critics at some point believe that some reasonable patent enforcement may be necessary to thwart the most problematic ones of Google's initiatives.
Nokia's statement describes its VP8 IPR declaration as an "unusual step". Unusual, but not unprecedented. I sided with Apple against Nokia in the nano-SIM context. At some point Nokia declared itself unwilling to make its patents available to implementations of Apple's proposal. So did Google's Motorola. After some of its concerns were addressed, Nokia ultimately agreed to make its related patents available on FRAND terms. But I don't expect such a solution here. Nokia is a member of ETSI, but not of the VP8 consortium, and I don't think it will partner with Google on VP8 anytime soon. ETSI needed a way forward for a new SIM card standard, while no one (besides Google) really needs VP8 given that H.264 works fine for the industry at large and for consumers (and it already has a successor, H.265). Even if Nokia -- contrary to what I believe will happen -- agreed to the same kind of solution, a FRAND licensing commitment would be antithetical to Google's claims that VP8 is royalty-free and unencumbered, and irreconcilable with the W3C's royalty-free patent policy.
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