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H.264 vs. Theora — Fightin' Words About Patentability 421

An anonymous reader writes "Thom Holwerda from OS News has penned a rebuttal to claims from Daring Fireball's John Gruber that Theora is a greater patent risk than H.264. Holwerda writes, 'And so the H264/Theora debate concerning HTML5 video continues. The most recent entry into the discussion comes from John Gruber, who argues that Theora is more in danger of patent litigation than H264. He's wrong, and here's why.'"
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H.264 vs. Theora — Fightin' Words About Patentability

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  • by discord5 ( 798235 ) on Saturday March 27, 2010 @08:43PM (#31643936)

    So before someone starts the whole "which codec is better" flamewar again: someone at xiph thinks theora is better [], ars thinks h264 is better [], and this guy has a do it yourself kit in the form of a shell script [].

    Have fun arguing, as the past few articles have been quite fruitful in that area. Sadly few have realized (despite it being the main focus of most of those articles, but hey, who reads those) that quality will not be the merit to win this battle.

  • by MikeRT ( 947531 ) on Saturday March 27, 2010 @09:17PM (#31644102)
    One of my fears here [] is that Firefox will be hit as hard by IE 9 as Netscape was with IE 4. Mozilla seems largely oblivious to how ambitious IE 9 is. A hardware-accelerated, multi-process, significantly more standards-compliant browser that supports H.264 out of the box would be just the thing for Microsoft to potentially stop Mozilla dead in its tracks on Firefox adoption.
  • by TheRaven64 ( 641858 ) on Saturday March 27, 2010 @09:37PM (#31644220) Journal
    That thing keeps being posted. I personally detest it because it compares H.264 and H.263 in the same page, so people who skim the article look at the smaller images and say 'look how much better Theora is!' And they're right, Theora is better than H.263. It's not especially clear which is better in the cherry-picked frame but, as you say, it is obvious which is better when you watch the videos. It's even more noticeable when you grab the lossless DIRAC version of the source movie how much both of them lose.
  • by tepples ( 727027 ) <{tepples} {at} {}> on Saturday March 27, 2010 @10:31PM (#31644494) Homepage Journal

    If early Mozilla branches simply removed GIF support, the browser would have been dead in the water. Nobody would use it, because the images people already have were in GIF format.

    It wouldn't have been necessary. The LZW patent under GIF was believed to apply only to encoding, not decoding. The editors of the H.264 patents were far more careful in this respect.

  • by Anonymous Coward on Saturday March 27, 2010 @11:22PM (#31644722)

    I don't think you love free software at all. You keep droning on the same fatalistic "H.264 is already more popular, the battle is already lost, so the entire computing world should just bend over and take it in the ass, with all the disadvantages that brings" argument.

    Trying to skirt around the issue by letting the end-users violate the patent on their own is an excellent way of turning open source into just the kind of patent bomb that proprietary vendors love to pretend it is to dissuade their customers from choosing it.

    In the long term, the only way to stop this racketeering is a better patent system. Shorter term, there are things people can do to take responsibility;
    - Distribute your videos in an open format. There's lots of content yet to be made, a small head start means little.
    - Make more devices support open formats. Write codecs for platforms that lack them.
    - Improve the open formats. There's open source encoders, and there's still years of work to be done on them.

  • Re:Patent risks (Score:5, Interesting)

    by b4dc0d3r ( 1268512 ) on Sunday March 28, 2010 @12:15AM (#31644998)

    Nope it's dishonest. The same thing applies to software and hardware patents. There's no distinction in that explanation that cannot be applied to mechanical inventions. You've made the case for voiding all patents, not just software.

    A far more coherent argument would include the rapid evolution of software, with examples such as GIF. Of course GIF is a special case which allowed a better candidate, PNG, to become more common (with a side journey into IE's market dominance holding back PNG acceptance while IE's PNG support sucked). So GIF encouraged invention, the "legitimate purpose" of patents. So a good argument is difficult to make.

    Very simply, math is abstract and remains free. The formula to calculate mortgage interest, or the location of a thrown object given the initial vector, gravity, atmospheric pressure (density), and external force such as wind, are not patentable. You can discover them and write papers and be influential in the field, but never patent it.

    PKZIP had a patented compression method. Zlib did the same thing, just using a different method, and created compatible files. MP3 encoders bypassed Fraunhofer patents. Maybe the output wasn't byte-for-byte the same, nor the compression levels equal, but there is a serious hole in the argument for software patents when you can just do the same thing a different way and get around the patent.

    The answer to Microsoft's Linux patent FUD is: Show us the patent, we'll work around it. The only place that fails is specific implementations like H.264 or FAT LFN or MPEG or SMB which are multi-platform. You can't program around a patented file format. Did you know that reverse engineering is valid for compatibility purposes? Why would that exist if not for a purpose? Then when you successfully reverse engineer something for compatibility, you can't use it because of patents. Why even have that exception if patents make it irrelevant?

    That's my main argument these days - if I can break the DMCA for interoperability, I can ignore patents for the same reason.

    The perfect mouse trap is invented, or the perfect lawn mower. I can choose to buy the patented solution, or go with a competitor. I buy in, paying extra for the patented hardware, and break a part. Is it allowed to fabricate my own parts to replace a broken one? Not if it violates the patent. So why can I reverse engineer for software interoperability, but I can't for hardware? Law may say one thing, here's my argument.

    Hardware which is validly patentable does not have an interoperability requirement. Your saw does not have to work with other saws, so the parts may be patented. A company like Black and Decker could patent a battery which powers their tools, and they would own interoperability among products but I'm free to choose a competitor or build my own, which need no interoperability.

    Software patents are increasingly used to protect a desirable object, so that content creators or consumers or both have to pay to create and/or access the content. Here's a new video codec, use it for a while while we hammer out the standards, then I pull the trigger and require payments. If you are the sole distributor of content and content will be consumed on your device (such as Pez and the Pez dispenser), patent away. But a method of packing up video to be shared with your devices, other companies, competitors and those in unrelated fields - interoperability is a requirement, and patents simply don't make sense.

    I have a mathematical algorithm which uses psychoacoustic modeling to reduce the audio data which must be encoded, resulting in smaller files. Brilliant idea, which is unpatentable by itself. The algorithm is unpatentable by itself. I can develop a separate model to accomplish the same thing, better, using the exact same algorithm (with a different model underneath). Psychoacoustics happens to be a fundamental part of the universe, which should be unpatentable like (natural) DNA is, or a description of gravity.

    So I u

  • Re:Patent risks (Score:5, Interesting)

    by pem ( 1013437 ) on Sunday March 28, 2010 @12:54AM (#31645186)

    There is a difference between "describe-able with math" and "is math".

    Perhaps, but that difference is small, and shrinking everyday. I think that is why several people, including myself, feel that it is splitting hairs to let the whole math thing get in the way of the debate. It's a distraction. I believe that most, if not all software patents are bogus, and many hardware patents are bogus, but that does not *necessarily* mean that there should be no software patents, just that we're going about the whole patenting thing the wrong way.

    Or to put it another way....

    Simulations of CMOS computer chips are so good that (in most cases, if you are not doing a shrink to a new node where there are new physical problems to find), if you design a circuit, you can simulate it (using software), and have well above 90% confidence that it will work just like your sim after you spend a million bucks to build a mask set to do the photolithography do do the chip. (If you think about it, that must be true, else no one would bother building any really dense silicon chips at all because it would be too risky.)


    The design, as simulated by the computer, just using software and math, is not patentable, because it's "just math." But OTOH, the design, as put into the real hardware, should then not be patentable, because its operation is utterly predictable (and predicted) by the non-patentable prior-art act of simulating it!

    Now, you can use all the weasel words you want to distinguish the hardware from the software, and in fact, this is probably, kind of, sort of, how we got to the weasel words that allow software patenting "in conjunction with a machine." BUT, there is (to my mind) a fundamental problem that a chip designer using math and software tools to build hardware is not doing a job that is FUNDAMENTALLY more difficult or technical, or more important to the economy, or which requires more invention, or greater math skills, or even skills which are really that different than a lot of highly skilled software designers.

    So, what distinguishes the results to make one patentable and the other one not. Well, we've already got "one is realized in real hardware." OK, where does that leave a logic design that could be stuffed into an FPGA or into a real chip? In one case, it's quasi-software -- easily reprogrammable, arguably as non-patentable as software should be. In the other case, it's an invention realized in hardware.

    For a living, I write software, I write hardware that gets synthesized into CMOS, and I do emulation of the hardware in FPGAs. To me, these are all fundamentally the same, and it would be intellectually dishonest for me to argue otherwise. OTOH, I am the inventor or co-inventor of 16 patents, mostly hardware, and mostly junk -- the kind of patents that big companies put in their arsenals for the whole "mutually assured destruction" thing that fell apart with the arrival of non-practicing patent trolls.

    So, my opinion is that the system is broken, but that in trying to fix the system, it is a counterproductive distraction to try to split hairs between hardware and software.

  • interesting... (Score:3, Interesting)

    by hitmark ( 640295 ) on Sunday March 28, 2010 @04:08AM (#31645908) Journal

    as i am sure at least one person affiliated with osnews would be yelling the typical "h264 should/must be used, as its the codec that produces the best quality video"...

  • Re:First Post (Score:5, Interesting)

    by nog_lorp ( 896553 ) on Sunday March 28, 2010 @05:05AM (#31646072)

    If we don't have that, then consumers cannot choose their own preferred browser, or preferred media player.

    Actually, if we DO have that, I cannot choose my preferred browser: an open source one. Yeah, big problem there for slashdotters - FOSS cannot implement H.264 because of the patent encumbrance.

    Flip is not going to cease to exist one day because a submarine patent takes all their devices off the market. The entire MPEG-4 group would address the submarine patent, all the manufacturers are protected from litigation in this way. That's just not true with Ogg.

    Licensing the H.264 pool does not protect you from submarine patents, but it doesn't matter as submarine patents are no longer viable.

    It is true that it is incredibly important that codec management no longer be a complication for the user. HTML 5 handles this well:
      <source src='video.mp4'>
      <source src='video.ogg'>

    There: it plays the "more advanced", more established, license-fee-encumbered codec if available. Otherwise, it falls back on the FOSS codec.
    There should be a single format that all browsers support, but this codec should not require an exorbitant license fee without excluding a huge segment of the browser market (FOSS). As for protection from patent trolls, it is reasonable to presume that Google will side with any other company that is targeted for use of Theora.

    All browsers should support Theora, and publishers can host H.264 (or any other codec) seamlessly on top of that if they want.

  • Re:First Post (Score:1, Interesting)

    by Anonymous Coward on Sunday March 28, 2010 @07:19AM (#31646402)

    If you imagine that Mozilla was saying "we can't support UTF-8" that is the same as them not supporting H.264. The UTF-8 text is already out there, and there's no other technology to replace it, and that is the same with H.264 video. A Web browser that can't play YouTube is not a Web browser.

    YouTube isn't played in the web browser today. It's played in a Flash applet. Flash is not "the web" and it never can be. It's a closed system that takes a free ride on the open protocols and open formats of the internet. And that's the core of the entire issue, isn't it. Without open, royalty-free video, video will never be played within the browser. It will be constrained to closed frameworks and closed libraries which you can't use without paying a toll (even if the implementations of those libraries are open source, you can't use them without paying that toll). That's a problem. That's not the web.

    But you don't want the web. You're proposing a closed system control by a very concentrated collection of corporate interests for the sake of what you view as pragmatism. That isn't pragmatic and it's a very short sighted perspective. It just builds a network that limits competition and entry to new developers for new platforms because to get anywhere they have to overcome the price barriers you want to erect.

    I don't want an Internet that's a patchwork of fiefdoms. I want a open, competitive network and open formats are the best way to build it.

  • Re:First Post (Score:1, Interesting)

    by Anonymous Coward on Sunday March 28, 2010 @07:37AM (#31646448)

    "If you imagine that Mozilla was saying "we can't support UTF-8" that is the same as them not supporting H.264."
    No it's not. This is not a technical problem. It's a licensing problem and some web-browsers just can't support H.264 in it's current state. Regardless of how many times people repeat the mantra about H.264 it doesn't make any different until the licensing issues go away. If you don't have a free software browser and the money / incentive dries up to keep pushing HTML forward ( like it did with IE 6) then you end up in exactly the situation we are now moving away from it.

    Theora can be made better, theora can be added to hardware and H.264 can theoretically be licensed in a compatible manner. The problem is that only the first two options seem to have anyone working on them.

  • Re:A moral win? (Score:3, Interesting)

    by Draek ( 916851 ) on Sunday March 28, 2010 @10:45AM (#31647226)

    "Normal people" are irrelevant here, writing a script to transcode a video from one format to another is trivial. What matters are "normal webmasters", y'know, those that'll go broke trying to pay MPEG-LA's exorbitant fees and close down their websites as result, or will simply refuse to host any sort of video at all and, as such, the entire 'online video' market will be relegated to already-established multinationals, essentially turning it into something as "interactive" and "diverse" as regular TV.

    The World Wide Web was made for the explicit purpose of allowing anyone and everyone to participate. Requiring payment of MPEG-LA's patents is the most blantant rape of that idea that you could possibly make.

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