Original URL: http://www.theregister.co.uk/2010/05/24/osi_board_member_on_google_webm/

Google open codec 'not open,' says OSI man

Net video play faces 'serious questions'

By Cade Metz

Posted in Developer, 24th May 2010 22:54 GMT

A board member with the Open Source Initiative (OSI) — the organization that approves open source licenses — has warned that there are "some serious questions" surrounding Google's swashbuckling efforts to create an open and royalty-free codec for web video.

Hoping to defend the VP8 codec against patent attack, Google has open sourced the technology under a new license that includes some patent-centric language, but it has yet to submit the license for OSI approval. With a Monday blog post, OSI director Simon Phipps questioned whether there's a hole in the license that could expose users to third-party patent holders, and he urged Google to join hands with the OSI on the project, saying that before it does so, the codec cannot be considered open source.

But he also urged Google to release more information about the patents backing the technology so that software makers can adopt it with added confidence. And he called on the company to work with an open standards organization with a strong patent disclosure policy.

At the same time, Phipps — the former head of open source at Sun Microsystems — took a jab or two at Google for building a new license after criticizing others for "license proliferation." But he tells The Reg that the primary aim is to bring Google to the table, and Google open source guru Chris DiBona has told us that the company intends to approach the OSI "in the coming weeks."

Last week, at its annual Google I/O developer conference, Mountain View announced that VP8 had been open sourced under a royalty-free license, hoping to challenge the patent-backed H.264 codec favored by Apple and Microsoft. Acquired last year when Google purchased video compression outfit On2 Technologies in a deal worth $124.6 million, VP8 has been rolled into a larger media format known as WebM, and it has already been included in developer-build browsers from Mozilla and Opera.

With his blog post, the OSI's Simon Phipps called Google's move "a positive and welcome development," praising the company for offering an alternative to H.264 and the existing open source codec Ogg Theora. And he pointed out that Google had "done their homework" in securing the backing of Mozilla, Opera, and even Flash-maker Adobe.

But his post was meant to show that more homework lies ahead. "Once all the hoopla had died down, it became clear there are some serious questions that need considering," he said.

For starters, there's the license issue. Google has used a new license to open source VP8, and at Google I/O last week, the company told us the license had not been submitted to the Open Source Initiative. Product manager Mike Jazayeri said that Google will "certainly follow the best practices" where the license is concerned, but it still hasn't submitted it to the OSI, and Phipps questions whether the license can be approved without changes.

Google's license is essentially a BSD that has been modified to include language that provides the licensee with patent rights to the technology and at the same time prevents them from using other patents to file an infringement suit against the technology. "The main difference between the standard BSD license and the VP8 license is that this license grants patent rights, and terminates if patent litigation is filed alleging infringement of the code," Google says in a WebM FAQ.

The addition is a bastardized version of language that appears in the Apache 2 license. Like Apache 2, Google rescinds patent rights if you file suit, but it also rescinds your right to use the technology. "The main reason it was not used is that filing patent litigation against someone using the Apache 2 license only terminates patent rights granted under the license. Whoever filed the litigation would still be able to use the software they are suing over and still be in compliance with the license," Google's FAQ says.

"This license, however, terminates all rights when patent litigation is filed. Rather than modify the Apache license to meet our needs, which would probably lead to significant confusion, we went with the simpler approach of a BSD style license + patent provision."

Simon Phipps questions whether the added language is a stumbling block. "As it stands it possibly can't be approved due to Google's ironic inclusion of a 'field of use' restriction in the patent grant (which is restricted to 'this implementation of VP8' rather than the more general grant in the Apache license from which the text started)," he wrote.

Whereas Google specifically refers to "this implementation of VP8," the Apache license simply refers to "the work." Phipps wonders whether Google's license still grants patent rights if someone uses only a portion of the VP8 code and not the whole thing. "One of the questions I would ask is: 'Does this narrowing of the language cause any problems?'" he told The Reg. "And that's the sort of question that gets answered during an OSI license review."

Googly irony

Yes, Phipps does call Google's inclusion of the new language "ironic." In the past, Google and its open source guru Chris DiBona have spoken out against the proliferation of open source licenses, and the new VP8 license, well, proliferates open source licenses. "Given their previous position on proliferating, I can understand their reluctance to come to the OSI with a new license," Phipps told us.

For what it's worth, Phipps argued that license proliferation isn't the problem people make it out to be. "Proliferation is a problem. It means that people coming to open source for the first time get confused and it distracts them from the task at hand," he said. "But most open source projects coalesce around a few licenses, and in the final analysis, most of the problems that result from a new license are faced by the company that writes it rather than by the community."

What's more, he told us that Google may indeed have a very good reason for creating a new license. There may not be a strong non-copyleft license out there, he said, that also provides the sort of protection against patent attack Google is trying for.

Despite his previous arguments against proliferation, Google's Chris DiBona told us that the company is doing what's best — and that it will soon approach the OSI. "Well, we're not big on proliferation, but basically we're pretty happy considering the license bsd + patent grant for now until the dust settles after the launch," he said.

"We'll likely engage with OSI in the coming weeks. We've released a lot of code, and given a lot of patent grants via Apache licensed software and others, so I think that we've shown, through our actions, that we are on the side of angels here."

Phipps said that until Google wins OSI approval, VP8 "is not currently open source." But he believes this can be sorted. "WebM is not currently open source, despite using a license based on the BSD and Apache licenses. This problem can be readily fixed by Google, and speaking as a member of the OSI Board I'd love to see them submit a templatised version of this license for approval."

"They've indicated they intend to 'follow best practices,' so I'm hopeful, even if it means slight embarrassment over license proliferation."

But even if the license issue gets solved, Phipps is concerned that the codec may be vulnerable to patent holders. Asked about such concerns, Google's Mike Jazayeri told us the company is confident VP8 will stand up to the sort of patent attack that Steve Jobs claimed was on its way to Ogg Theora.

The CEO of MPEG-LA — the organization that licenses H.264 on behalf of patent holders like Apple and Microsoft — has already said it's "looking into" a patent pool license for VP8, threatening Google's efforts to make VP8 a royalty-free option. And like other open source supporters, Simon Phipps has called on Google to provide adopters with a bit more information.

"Despite their claims that WebM was been checked for patent risks when ON2 was acquired, Google has neither made its research available nor does it offer a patent indemnity. Google has expressed extreme confidence in the patent safety of WebM, yet has failed to create a patent pool with its other endorsers and and grant free and indemnified licenses to WebM users," Phipps wrote.

"That means the path is open for those hostile to digital liberty, such as the MPEG-LA licensing cartel, to 'tax' VP8 users — they have already declared an intent to do so. Google should rapidly create 'WebM-LA' with $0 licensing terms for those willing to commit to digital liberty."

Phipps also warned that although Google has donated its VP8 code to world+dog, the codec is not yet an open standard. "Simply making the code for VP8 open source does not automatically make it an open standard," he said, before pointing to a blog post from former Sun employee Rob Glidden, where the Java video man urged Google to submit WebM to a standard group with a strong patent disclosure policy. Glidden went so far as to say that in opening VP8 on its own, Google is "undermin[ing] the very standards groups the open Web needs to thrive and grow."

Echoing Google, Phipps said that VP8 "offers the possibility for video and audio to be represented in a way that is truly open and accessible to everyone in the world, without the anachronistic licensing barriers associated with H.264." But before this happens, he insisted, the company must do more.

"Google's do-it-all-ourselves mentality has made them forget or avoid addressing three very important issues: open source licensing, patent indemnity, and open standardisation," he said.

"Over the weekend I have heard from many thoughtful people who like me want to cheer loudly yet also want these issues addressed. How about it, Google?" ®