In case the news from Google I/O this week left you feeling Google can do no wrong, there’s a story no one is writing about that lends a little balance. Google’s handling of the challenge to the VP8 codec from MPEG-LA is now in progress — and it shows signs of unfamiliarity with the tenets of software freedom.
As you may recall, Google continues to assert there are no patents in MPEG-LA’s pool that read on VP8, yet has secured agreement from MPEG-LA to a license settling once and for all that there’s no risk to VP8 implementors and users from MPEG-LA’s pool. At the time of the recent IETF meeting, Google promised to publish its ideas for a cross-license agreement, and it’s done just that. The draft agreement is clearly marked as a work in progress, so there’s still scope for change. I hope it happens.
The release of that discussion draft last week is good news for open source enthusiasts. At least, it sounds like good news. The explanatory blurb adorning the draft agreement’s text says it’s designed to give a “royalty-free license to certain patents that are necessary for the implementation of VP8.” The fact that the document has been released while its specific points are still “under review” is also encouraging; perhaps Google is keen to measure the community reaction, testing the ideas publicly rather than releasing a completed document.
Issues for open source
The devil, of course, is in the details. How should we react to the proposed cross-license? What would we like the company to take away from our response? At the moment the document has a number of issues.
The first, and most significant from my perspective, is that gaining benefit from the agreement requires individual execution of the license agreement (see section 2). This will have to be done by each person wishing to benefit from the agreement; the rights under the agreement are not “sublicensable” according to section 3, so they can’t be passed on to anyone else. You’ll need to provide your personal information to Google to get this license, and section 9 makes clear the company may well use it at some point to contact you and even use your name in its publicity, according to section 15.
That restriction is probably tolerable for a corporation that can execute the agreement once for all products and staff, but for an open source project it’s a big problem. Open source communities may not have a legal entity able to sign on behalf of the community, either because there’s no actual legal entity or because the community of developers has too loose a relationship with any legal entity to be counted as the equivalent employees. By requiring individual, nontransferrable registration, Google is erecting a barrier that at the very least will provoke suspicion from open source projects.
Secondly, there’s a “field of use” restriction. That means the patent grant you’re getting only applies to specific uses; according to the definitions toward the end, that “means (and is limited to) encoding, decoding, transcoding, and/or playing VP8 Video.” If you’re writing any multipurpose code or if the way you’re dealing with VP8 varies somewhat from the normal format — perhaps you’ve added capabilities — then the license doesn’t apply. For open source, that chills innovation and leads to uncertainty over whether a specific program is covered.
From my nonlawyer perspective, this approach seems unworkable for free and open source software. If the patent license Google is proposing for VP8 were part of an open source license, it would probably render the license in violation of the Open Source Definition. Specifically, the license appears to conflict with OSD 6 (no field-of-use restrictions), OSD 7 (no registrations), and OSD 5 (no discrimination against persons unwilling to be identified). It’s arguable it also conflicts with OSD 3 since it is not sublicensable.
As a consequence, I suggest the license is flawed when considered in relation to open source projects and is likely to be negatively received by many communities that value software freedom. Doubtless a case can be made that the patent license is optional, but I suspect the community issues may remain.
Once again we’re left with our fingers crossed. Google’s making the right noises, but this draft agreement seems like a particularly unworkable approach for free and open source software. Its failure to allow sublicensing seems like a major flaw. Even if this doesn’t result in a requirement for all end-users to sign the agreement, the discrepancies between this document and the OSD leave it disruptive to open source adoption of VP8.
The irony of this situation is Google has asserted plausibly that there’s no need to have a license anyway in connection with MPEG-LA’s patents. As Washington, DC, attorney David Balto recently found, patent pools like MPEG-LA offer a tool for anticompetitive behavior that deserves scrutiny. This document seems to me to be an effective outcome for those in MPEG-LA’s patent-holder community who want to see VP8 disrupted. It has provoked an autoimmune response that must have Google’s enemies smiling wickedly.