Are the "open source" codecs really at risk?

Yesterday, Hugo Roy, the French Coordinator of the Free Software Foundation Europe, wrote a blog entry in which he criticized Steve Jobs' use of the word "open" when referring to H.264, which is a codec commercially licensed by MPEG LA. Roy said that Ogg Theora, which has been adopted by both Mozilla and Opera (and is being funded in part by Google) is a truly open-source codec. Jobs replied back, saying in essence, "not so fast." His response was as follows:

"All video codecs are covered by patents. A patent pool is being assembled to go after Theora and other “open source” codecs now. Unfortunately, just because something is open source, it doesn’t mean or guarantee that it doesn’t infringe on others patents. An open standard is different from being royalty free or open source."

The patent pool that Jobs is referring to has to be MPEG LA, and it's been assembled for years. Whether Jobs has any special insight into the matter or merely is repeating what's already been written about the topic is impossible to say, but my guess is that he's referring to a quote by Larry Horn, MPEG LA's CEO, in an interview with Jan Ozer:

"... In addition, no one in the market should be under the misimpression that other codecs such as Theora are patent-free. Virtually all codecs are based on patented technology, and many of the essential patents may be the same as those that are essential to AVC/H.264. Therefore, users should be aware that a license and payment of applicable royalties is likely required to use these technologies developed by others, too. MPEG LA would consider offering on additional licenses that would make these rights conveniently available to the market under a single license as an alternative to negotiating separate licenses with individual patent holders."

In a subsequent interview, Ozer tried to get clarification from Horn about MPEG LA's position on Ogg Theora through the following exchange:

Ozer: It sounds like you’ll be coming out and basically saying that to use Ogg, you need to license it from MPEG LA. Is that correct?

Horn: That is not what we said. We said no one in the market should be under the misimpression that other codecs such as Theora are patent-free. Whether MPEG LA would offer a license for such rights is a different matter and has not been determined. If the market would find convenience in a single license to address these intellectual property needs, then MPEG LA would be interested in providing one as it has for other codecs.

Ozer then interviewed Monty Montgomery of Xiph.org, which administers Ogg Theora, to get his take on the subject:

"For 15 years, Xiph.Org has carefully "played by the rules," fully within the bounds, intent, and letter of intellectual property and patent law. For the past ten years we've informed the entire world, including MPEG LA, of our specifications and algorithms in detail. We've requested in open letters that any group believing we are infringing to inform us so that we make take immediate corrective action."

"I predict that MPEG LA may counter that they know groups have been pressured into licensing patents in order to use Theora. This has been a recent back-room assertion. You might want to ask point blank if MPEG LA itself or any of its constituent members has engaged in this practice, thus manufacturing the evidence that "vindicates" their patent allegations. I beg you—tell me immediately if you get a straight answer (or good video of any squirming)!"

"I'm sure you can tell I'm a bit peeved; this has been going on for over a decade. It's amazing they've never been called out on it."

Xiph.org has a responsibility to insure that the technology in Ogg Theora doesn't violate any of MPEG LA's patents, but MPEG LA also has a responsibility to protect its patents if it believes that they're being infringed. If MPEG LA has known about Theora and has failed to do anything about it, they may be precluded from doing anything about it by the courts. Or, Theora actually might not violate any of MPEG LA's patents, and Larry Horn was saber-rattling. Or, MPEG LA may be afraid that if it takes action against Theora, Xiph.org or its supporters may find prior art that would invalidate one or more of MPEG LA's patents, which would be a much bigger problem than Theora, since all the licensing revenues from that patent (or patents) would be at risk.

So, my suspicion is that Jobs was talking out of his hat. If there's going to be a lawsuit, let's see it.