Is H.264 a legal minefield for video pros?
March 1, 2010 4:00 AM PST
news.cnet.com
If you're a digital-video professional--the sort of person who records weddings, sells stock footage, or edits B-roll--chances are good you deal with the H.264 video encoding technology. But after reading software license agreements, you might well wonder if you have rights to do so.
A recent blog post by Harvard Ph.D. student Ben Schwartz, including the provocative phrase "Final Cut Pro Hobbyist," put the spotlight on license terms in Apple's video-editing software by questioning when professionals may use H.264 video. A similar "personal and non-commercial activity" license requirement appears in Adobe Systems' competing Premiere package, too.
Schwartz's contention caught my attention: my SLR shoots 1080p video encoded with H.264, and I'm in a position both to publish some videos online for my main job and sell others on the side. And with bubbling controversies regarding how HTML is reshaping online video, any troubles with H.264 constraints take on new interest.
It seemed like a good time to call Apple, Adobe, and the MPEG-LA, the industry group that licenses the H.264 patent portfolio to the likes of software companies, optical-disc duplicators, Blu-ray player makers, and others who have need to use H.264.
I was a little alarmed when Apple and Adobe declined to comment--it's their software people are buying, after all. I got a similar response from Microsoft, which includes similarly restrictive H.264 language in its Windows 7 license.
When I heard back from Allen Harkness, MPEG LA's director of global licensing, though, I was relieved to learn that Final Cut Pro isn't just for making YouTube cat videos.
But H.264 use isn't all free all the time--the wedding videographer might need to pay 2 cents per disc they sell, for example--and even experts can be thrown off by the complications.
"I agree that the language in these licenses is a bit off-putting, on first read. I had a similar reaction the first time I read the license," said Dan Homiller, a patent attorney with intellectual property firm Coats and Bennett. "The biggest problem with the particular language that MPEG LA requires their licensees to use is that it sounds threatening to ordinary users of the end device."
Although I'm somewhat reassured in this particular matter, the broader issue raises my hackles.
End-user license agreements, privacy policies, and terms and conditions are impenetrable enough as it is. I fear that in the technology era, ugly legal realities will intrude in new ways into ordinary peoples' lives, whether it's worrying about licensing the music your toddler is dancing to on YouTube, having your electronic books withdrawn, or being charged with illegal surveillance when recording video with a mobile phone.
But back to the specific H.264 case. Let's start with the background.
H.264 license terms
H.264 is what's called a codec, technology to encode and decode media such as video or audio. In the video domain, its rivals include VC-1 from Microsoft, Ogg Theora from the Xiph.org Foundation, and VP8 from On2 Technologies, a company Google acquired in February for $124.6 million.
MPEG LA's simplified diagram of H.264 licensee types.
(Credit: MPEG LA)
For historical reasons involving marketing, standards groups, and industry jargon, H.264 goes by many names. It's also called AVC (short for Advanced Video Coding), MPEG-4 Part 10 (the acronym refers to the Moving Picture Experts Group), and JVT (Joint Video Team). When it comes to licensing, it gets even more complicated.
MPEG LA licenses a portfolio of more than 1,000 H.264-related patents on behalf of 26 companies that hold the patents.
Among the companies whose patents are covered by the portfolio (the full H.264 patent list is available in PDF form) are: Frauenhofer, Microsoft, LG Electronics, Panasonic, Philips Electronics, Samsung, Sharp, Sony, and Toshiba. MPEG LA licenses the patents on behalf of this group.
So how exactly does this translate into the world of video editing? Here's the language from the Apple Final Cut Pro...
...Ultimately, for the license terms one sees in software, MPEG LA errs on the side of sounding tough.
"The purpose of the provision in the MPEG LA license is to ensure that the license doesn't cover commercial distribution of H.264-encoded video," Homiller said. "It would be nice if there were a 'gentler' way to convey this, but it might be challenging to do so without opening up some loopholes that the licensers would regret." |
