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Patent attack on Google open codec faces 'antitrust probe'

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The US Department of Justice is investigating MPEG-LA – the patent pool organization backed by Apple, Microsoft, and others – over the organization's effort to undermine the royalty-free V8 codec Google introduced last year, according to a report citing people familiar with the matter.

The Wall Street Journal reports that the DoJ has launched a formal antitrust probe into whether MPEG-LA or its members are trying to stunt the growth of VP8 by creating legal uncertainty around the open source technology. In May, after Google open sourced the V8 codec under a royalty-free license and rolled it into a new web media format known as WebM, MPEG-LA chief executive Larry Horn said the organization was looking into the formation of a patent-pool license for VP8 and WebM. And last month, the organization made an official public call to patent holders, asking them to submit patents that may be essential to Google's codec.

MPEG-LA licenses the competing H.264 codec on behalf of Apple, Microsoft, and many other patent holders. Apple and Microsoft use H.264 for HTML5 video in their Safari and Internet Explorer browser's, while Google, Mozilla, and Opera use VP8. Mozilla and Opera have said they will not use H.264 because it's encumbered by licensing fees.

MPEG-LA did not immediately respond to a request for comment. But when we spoke to the organization after its call to patent holders, it told us it is merely acting on behalf of its members. "The VP8 patent call means that we plan to facilitate a discussion among companies that own patents essential to VP8 to determine if they want to create a patent pool license," the organization said. "While the purpose of the patent call is to begin creating a VP8 license, it is the decision of the patent owners whether or not a license for VP8 will be offered."

Speaking with The Journal, MPEG-LA neither confirmed nor denied the DoJ investigation, and Larry Horn reiterated that it is merely offering a service to its members. "We are effectively a convenience store" for licensing patents, he said. "We have no dog in that fight [the fight over which video codec wins out]."

But Horn did have some strong words about VP8. "I can tell you: VP8 is not patent-free," he said. "It's simply nonsense."

Google and Microsoft declined to comment on The Journal's story. Apple did not immediately respond to a request for comment.

Google acquired the VP8 codec a year ago when it purchased video compression outfit On2 Technologies in a deal valued at $124.6m, and it open sourced the codec a few months later at its annual developer conference, saying it wished to create a web video standard unencumbered by licensing fees.

Mozilla and Opera joined the effort immediately. The stable versions of Google Chrome, Mozilla's Firefox, and Opera now include the codec for use with the HTML5 video tag, and though Chrome initially offered the H.264 codec as well, Google dropped the royalty-saddled codec earlier this year.

Google's YouTube continues to use Adobe Flash, which is still dependent on H.264. But YouTube also offers HTML5 support, and it's encoding new videos with WebM as well. Google still needs Flash on YouTube – the HTML5 standard doesn't do everything Google needs it to do on the site – but in the long run, the company wants a web that uses WebM and HTML5.

Microsoft and Apple have backed HTML5 video, but they want it to use H.264. Before Google open sourced VP8, Apple said it used H.264 due to the "uncertain patent landscape" of Ogg Theora – the open source codec then used by Google, Mozilla, and Opera – and Ogg's lack of hardware support. Microsoft has made similar noises, saying the intellectual property rights around Ogg and other codecs were "less clear" than those around H.264.

At one point, in an email to a random questioner, Steve Jobs said that unnamed forces were putting together a patent pool to "go after" Ogg Theora.

When Google open sourced VP8, we asked Google product manager Mike Jazayeri if VP8 was vulnerable to such a patent attack. "We have done a pretty through analysis of VP8 and On2 Technologies prior to the acquisition and since then, and we are very confident with the technology and that's why we're open sourcing," he said. ®

Update

MPEG-LA has responded. "As we told the Wall Street Journal, MPEG LA's long-standing policy is that we do not confirm or deny the existence or non-existence of any governmental proceedings," an MPEG-LA spokesman said.

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