Microsoft Attempts To Defend Its H264 Position, Fails

Are you guys sick of the H264 debate already? Yes? Too bad, because we’ve got more. Microsoft’s decision late last week to restrict Internet Explorer 9 to H264 was met with a rather immense amount of criticism, so the company decided to publish a new blog post responding to some of that criticism. While Microsoft makes a few good points, the overall feeling is still that of ‘fear, uncertainty, and doubt’.

Microsoft first repeated the party line – H264 is a safer and more secure path for the future legally speaking, it has the best hardware support, it’s the best codec, best software support; you know the drill. Apart from the first point, these are hard to argue with – although the quality question certainly hasn’t been settled, especially since Theora keeps improving almost by the week.

In Microsoft’s announcement, the company made a rather vague remark about “the rights to other codecs” often being “less clear”, as had been described in the press, the company claimed. In the current post, Microsoft provides articles in the press to back up the claim that Theora is in legal hot water, but the articles they dug up (a whole four of them) are flimsy, at best, since all these sources consist of claims coming from… The MPEG-LA (save for one, which contains an anonymous source as well). Heck, of these four, one is the email from Steve Jobs we reported on earlier!

I must say, this is remarkably weak as far as FUD attempts go. Once again, we hear claims of a very definitive nature, yet not a single shred of evidence or proof to back them up. Even after a decade of ‘fear, uncertainty, and doubt’, the MPEG-LA and its lackies still cannot come up with anything substantial. You’d think that an organisation whose sole raison d’être is managing video codec patents would be able to come up with the patents Theora is supposedly infringing upon.

Microsoft also goes into the argument put forth by many – myself included – that Microsoft and Apple pushing H264 is strongly related to the fact that both of them are part of the MPEG-LA, and receive royalties from every H264 license sold. According to Microsoft, this reasoning is flawed.

“Microsoft pays into MPEG-LA about twice as much as it receives back for rights to H.264,” the company claims, “Much of what Microsoft pays in royalties is so that people who buy Windows (on a new PC from an OEM or as a packaged product) can just play H.264 video or DVD movies. Microsoft receives back from MPEG-LA less than half the amount for the patent rights that it contributes because there are many other companies that provide the licensed functionality in content and products that sell in high volume.”

I’m not sure if we can check these figures for their accuracy, since I’m not familiar with US legal structures, and hence, do not know if the MPEG-LA actually makes its figures available to the world. The MPEG-LA is an LLC, so maybe we have a lawyer or specialist in the audience that can clarify this?

A very important aspect of the problems many people have with H264, as described in great eye-opening detail by Eugenia, is that of the license H264 implementations ship with. The license is of the non-commercial use only variety, and has been worded in a sufficiently vague fashion to make it possible for the MPEG-LA to sue just about anyone who has ever watched an H264 video on the web.

Microsoft has no answer to this, other than “these are the terms, and we have to abide, etc. etc.”. The company does “expect” to advocate to keep streaming H264 free for non-commercial purposes even after 2016. “We are aware that this commitment is set to expire in 2016, but fully expect to commit to supporting the extension of this license and associated terms beyond that date,” they state. Keyword: expect. They can’t even manage a promise.

“The biggest obstacle to supporting more than H.264 today is the uncertainty,” the company concludes, “When there’s industry consensus and confidence that the uncertainties are resolved, we’ll be open to considering other codecs. Until then, we’ll continue with our current plans to deliver great HTML5 video in IE9 with certainty for consumers and developers.”

Sadly, Microsoft’s blog post doesn’t even begin to remove the sour taste of FUD from my mouth. Florian Bösch, developer of Lithosphere, put it better than I ever could. He posted a comment on the MSDN blog that pretty much sums up how I feel. He posted several reasons why, in fact, H264 is the most uncertain choice for web video.

  • The commercial clause as put forth by MPEG-LA is very vaguely defined, thus exposing anybody who touches it to a huge risk.
  • Pricing for royalties are not quoted, and it is practically certain that they would put anybody out of business except big media conglomerates, thus representing an unquantifiable infinite risk.
  • Royalty free usage for personal use might end 2015, by which time an unspecified number of users and possibly businesses would be exposed to an unlimited amount of risk.
  • H.264 and its lock-in of video codecs might be found to be illegal under antitrust and price-fixing laws, therefore exposing anybody who touches it to an infinite risk of this technology being prohibited, limited, crippled or stagnated.
  • H.264 is put forth by a large committee, virtually guaranteeing that it will change little, and therefore exposing users and businesses to the infinite risk of being locked into yet another stagnant technology.

I have little to add but ceterum censeo H264 esse delendam.


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