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Can We Legislate Past the H.264 Debate?

Soulskill posted more than 4 years ago | from the presuming-a-lot-about-our-legislators dept.

Government 310

Midnight Warrior writes "We could solve the H.264 debate if a country's legislature were to mandate that any patents that contribute to an industry-recognized standard were unenforceable in the application of that standard. Ideally, each standard would also be required to have a 'reference design' that could be used without further licensing. This could also solve problems with a ton of other deeply entrenched areas like hard drives, DRAM, etc. RAND tries to solve this strictly within industry, but both the presence of submarine patents and the low bar required to obtain a patent have made an obvious mess. Individual companies also use patent portfolios to set up mutually assured destruction. I'm not convinced that industry can solve this mess that government created. But I'm not stupid; this clearly has a broad ripple effect. Are there non-computer industries where this would be fatal? What if the patents were unenforceable only if the standard had a trademark and the implementer was compliant at the time of 'infringement'? Then, the patents could still be indirectly licensed, but it would force strict adherence to standards and would require the patent holders to fund the trademark group to defend it to the end. In the US model, of course."

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What's an "industry-recognized standard"? (4, Insightful)

fph il quozientatore (971015) | more than 4 years ago | (#32147200)

What's an "industry-recognized standard"? Who has the authority to make them? Defining this could raise more problems than the ones this whole thing is supposed to solve...

Re:What's an "industry-recognized standard"? (4, Insightful)

WrongSizeGlass (838941) | more than 4 years ago | (#32147256)

Can We Legislate Past the H.264 Debate?

No.

What's an "industry-recognized standard"?

"No" is recognized by almost every person, corporation and country. I'd say that's pretty standard.

This is just a bad idea ... even worse than letting people like me post on Slashdot.

Re:What's an "industry-recognized standard"? (3, Insightful)

sopssa (1498795) | more than 4 years ago | (#32147286)

This is just a bad idea ... even worse than letting people like me post on Slashdot.

Exactly, and who will develop these technologies and put millions in to them if they can't get it back and/or profit from it? Isn't that exactly why US has had such innovative technology industry which promotes the basic idea of American capitalism? Now you want to take it away?

Re:What's an "industry-recognized standard"? (3, Funny)

Anonymous Coward | more than 4 years ago | (#32147326)

Exactly, and who will develop these technologies and put millions in to them if they can't get it back and/or profit from it? Isn't that exactly why US has had such innovative technology industry which promotes the basic idea of American capitalism? Now you want to take it away?

But... but... capitalism?! Capitalism is evil!!

Re:What's an "industry-recognized standard"? (3, Funny)

mrsteveman1 (1010381) | more than 4 years ago | (#32147590)

But... but... capitalism?! Capitalism is evil!!

So is Boldism

Re:What's an "industry-recognized standard"? (4, Funny)

ColdWetDog (752185) | more than 4 years ago | (#32147684)

So is Boldism

No, you're thinking of Comic Sans. That's evil.

Boldism is just annoying.

Re:What's an "industry-recognized standard"? (0, Offtopic)

OeLeWaPpErKe (412765) | more than 4 years ago | (#32147602)

How about socialists prove socialism is better ... seems simple enough.

H264 is far away from the theoretically best compression. So we just need one socialist to prove that they can do more, to make something that beats H264, and give it away for free.

The only way this could be impossible is if we all accept that socialism is inferior, or that it at least can never be as efficient as capitalism. You know, theora actually got somewhat close, and failed (or so it seems). Any other course of action, like the proposed legislation seems like an open insult. "Let's just steal it, since we can't hope to ever approach anything of that quality".

Re:What's an "industry-recognized standard"? (2, Insightful)

Anonymous Coward | more than 4 years ago | (#32147658)

Why would this discussion be some silly argument over who is better, capitalism or socialism?

There's plenty of cases though, of a government regulating a standard, and deciding it will be available. No great problem with the television industry for example.

Re:What's an "industry-recognized standard"? (1, Informative)

Anonymous Coward | more than 4 years ago | (#32147726)

H264 is far away from the theoretically best compression. So we just need one socialist to prove that they can do more, to make something that beats H264, and give it away for free.

That's not how it works. 99% of progress is evolution, not revolution. A codec that beats H264 will inevitably share at least some characteristics with H264, and if those characteristics are patented -- even if the designer of the new codec has never even heard of H264 -- they're not allowed to distribute it in the US. (And you're conveniently ignoring the fact that patents are socialism.)

Re:What's an "industry-recognized standard"? (1)

angelwolf71885 (1181671) | more than 4 years ago | (#32147888)

patents ARNT socialism they only last for 14 years then after that they are in the public domain socialism is complete control IE copyrights and with they way they work in the US they last about 100 years gaining complete control takes time it took 3 different bills under 3 different congresses to gain that much control Obama might break the record though he already controls education the auto industry and health care just need media and we are screwed well they are pushing for " supposed " net neutrality and Obama appointed 6 MPAA/RIAA lawyers to the FCC

Re:What's an "industry-recognized standard"? (0)

Anonymous Coward | more than 4 years ago | (#32147382)

This is just a bad idea ... even worse than letting people like me post on Slashdot.

You should be modded +5 insightful, having refuted a troll post, even if that troll was really you... as Bertrand Russell would have been the first to point out. But wait, that means the troll post should be modded -1 flamebait... maybe proving that Slashdot has a mod 6 moderation system?

Re:What's an "industry-recognized standard"? (4, Insightful)

larry bagina (561269) | more than 4 years ago | (#32147520)

Congress could.

Whereas H.264 ("The Standard") is a standard licensed under reasonable and non-discriminatory terms which promotes the science and useful arts.... bleh bleh bleh... any patent infringement claims against H.264 must be made known within 6 months of the passage of this law. Failure to make said patent infringement claims known within the specified time period shall prevent any future claims, actions, lawsuits, or other method of redress with respect to the implementation and/or use of the standard

Re:What's an "industry-recognized standard"? (2, Insightful)

0100010001010011 (652467) | more than 4 years ago | (#32147480)

Is GSM a "standard"? This country didn't take a stand in GSM vs CDMA. (Go Capitalism!) However Europe DID, and made GSM a standard.

If it 'worked' or was better, that's up to debate.

Re:What's an "industry-recognized standard"? (1)

cynyr (703126) | more than 4 years ago | (#32147608)

i doubt that up for much debate, they have more coverage, more consumer freedom and a better selection of phones. so GSM wins.

Re:What's an "industry-recognized standard"? (1)

bhtooefr (649901) | more than 4 years ago | (#32147926)

However, CDMA EVDO was a much smoother and faster rollout, lower handset power consumption than UMTS (IIRC,) and coverage in rural areas tends to be better with CDMA, in any country that provides both CDMA and GSM.

And, the selection of phones and consumer freedom don't really exist on US GSM carriers, either.

Re:What's an "industry-recognized standard"? (2, Insightful)

BlackBloq (702158) | more than 4 years ago | (#32147734)

There are no king makers for standards! They arise from a need in the industry and then they fill a gap. MPEG group didn't say ok all you use this or be fired! Who would care? The MPEG came out as the only format that was there and worked. Go to a trade show, the only computer playing motion video AT ALL back in the day was a computer playing Terminator 2 with a hardware MPEG card showing FULL SCREEN VHS quality! Back then everyone was like woaaaa! Be there and work, fill the need. Then you become a standard. Everything else is lawyer stuff.

Re:What's an "industry-recognized standard"? (1)

Z00L00K (682162) | more than 4 years ago | (#32147814)

I think that the big issue here is that there are patents provided for small details that often are obvious and can easily be re-invented almost as an afterthought by someone else.

Effectively the patent system is containing too much noise.

Then the patent holders of existing patents are often requesting settlements and license fees that aren't really reasonable, which causes some cases to end up in court before a settlement is made.

And as a general rule - the world is developing at a breakneck speed which means that patent processing is often slowing down the development. This is one reason why countries in East Asia are offering new versions and items almost every week. They aren't limited to the same level by their patent system as the companies in the US are.

Only catch is that a lot of products are sold in the US which means that now and then there are a call for a product ban due to some possible patent infringement. So even companies in East Asia needs to keep an eye on patents. However it also means that some products may appear earlier on other markets than on the US market - if at all - since they have to work out the patent maze first.

Uh huh (0)

Anonymous Coward | more than 4 years ago | (#32147204)

That deprives the patent holders of at least some of the right to profit from their patent, which means that you get into the legal minefield of expropriation and just compensation.

Re:Uh huh (2, Insightful)

hedwards (940851) | more than 4 years ago | (#32147318)

No it doesn't. They could choose to withhold permission for it being included in the standard. Which is really the point, a lot of these formats would never have become standard if they had been forced to pay royalties on it from the get go. GIF and JPEG for instance ended up having issues, not to mention somethings with submarine patents where the corporation holding the patents lies about it.

The problem is the abuse of questionable patents that aren't disclosed or utilized by the entity holding them then holding the world hostage after the standard takes off. All standards should be unencumbered and free to use. You want to be paid? Fine, just do it with something that isn't a standard.

Re:Uh huh (2, Insightful)

Goaway (82658) | more than 4 years ago | (#32147366)

a lot of these formats would never have become standard if they had been forced to pay royalties on it from the get go.

Pretty much all the places where h.264 is used, it had to be paid for from the start, and it was still chose, because it is very good.

Re:Uh huh (4, Informative)

Svartalf (2997) | more than 4 years ago | (#32147522)

Ahh... But you don't know all the places that it requires LICENSING.

Use it to produce a home movie, you're okay.
Use it to produce a indie movie, even with "pro" grade equipment and you're not.
Use it to produce a demo reel for your work, and you're not.

Only parts of the generation or playback licensing have been paid for- you're on the hook for everything else and they'll enforce if you hit a certain threshold (about $100k of revenue of any kind generated from it...). They'll come mug you for money at that point and it's NOT cheap.

Re:Uh huh (1)

joebagodonuts (561066) | more than 4 years ago | (#32147906)

Thank you. The idea they are entitled for money for a creative product I make using their codec - effectively without other options in the market. Just try to buy a camera without it - is the opposite of freedom. Market freedom or personal freedom.

This market is NOT open, and there is a concerted effort to make it that way and keep it that way. Lots of patent-saber rattling and veiled threats. The folks who are behind this are the same people who will lie to you and tell you " you have options" and "the market is free". They have a powerful pulpit to spread their message.

Can we legislate? I dunno. I think that requires a certain amount of political will, and I don't know that we're there yet. I'd like to think it's in our interest to do so. Possibly be a benefit to the business as well. We're more competitive when we are forced to compete, rather than having a few players tightly control things. But, then you are one of the few controllers, your perspective changes.

Re:Uh huh (1)

laughingcoyote (762272) | more than 4 years ago | (#32147656)

That deprives the patent holders of at least some of the right to profit from their patent, which means that you get into the legal minefield of expropriation and just compensation.

While the popular term for copyrights and patents ("intellectual property") really muddies the waters, they are not property rights. In fact, the Constitution specifies that they must be expropriated, not just that they may be. The Constitution states that copyright and patent terms must be for a "limited time", and that they are solely to "promote the progress of Science and the Useful Arts". They are not a property right intended for the individual, they are intended to serve a societal good and to be limited in duration. If the greatest benefit to science and art would be to remove all patents and copyrights, the Constitution's clear statement of their only legitimate purpose would not only allow but demand that we do so.

Re:Uh huh (1)

Bengie (1121981) | more than 4 years ago | (#32147810)

it should be more along the line of "if you offer a free version of something and it becomes industry standard, you lose your rights to it".

It gets rid of this bait-and-switch bullshit where they make a codec free/easy and it becomes standard then they decide to charge for it once it everyone NEEDS it.

Re:Uh huh (4, Informative)

Arker (91948) | more than 4 years ago | (#32147860)

No, actually it doesnt.

Patents are not real property. They are monopoly privileges *created* by the state, and in fact they represent "expropriation" to begin with. Understanding this fact is critical.

The proposal in this article is backwards for exactly that reason. We have a problem created by state interference in the economy, and rather than propose that the state simply *quit creating the problem* we propose even more interference.

Entirely backwards. The solution here is the opposite of the proposal. Simply abolish patents instead.

While we're at it (1, Insightful)

Hal_Porter (817932) | more than 4 years ago | (#32147210)

Can we say that any property rights - intellectual or otherwise - for the ingredients of Cheetos, ramen and anime are unenforceable. Then I we can all watch free anime DVDs and eat Cheetos and ramen. Also the telco should give me unlimited download bandwidth and stores that deliver ramen and Cheetos should be prevented from charging.

Re:While we're at it (0)

Anonymous Coward | more than 4 years ago | (#32147272)

There's not really a lot of protected "intellectual property" behind ramen and cheese-puffs to begin with, honestly.

Re:While we're at it (1)

maxwell demon (590494) | more than 4 years ago | (#32147790)

Well, until you come up with a replicator, traditional property rights will have to remain. You simply cannot get any ramen without taking it away from someone else (unless you produce it yourself, but then the same applies to the stuff out of which you make ramen).

Have you really thought this all the way through? (1)

BadAnalogyGuy (945258) | more than 4 years ago | (#32147212)

Are there non-computer industries where this would be fatal?

Would the computer industry be ruined by such a sweeping move to remove IP protection from companies?

You think that there's a problem with standards now? What the hell do you expect to happen when companies are forced to give up their IP if they ever join a consortium?

Re:Have you really thought this all the way throug (1, Interesting)

Nadaka (224565) | more than 4 years ago | (#32147724)

Here is the thing.

Software is the only industry that that is encumbered by both copyright and patents.

Reasonable IP protection is a good thing.

I like that there are patents and copyright.

But they should not cover the same material in this way.

Copyright is the more appropriate protection for software (though its duration is far to long).

Re:Have you really thought this all the way throug (0)

Anonymous Coward | more than 4 years ago | (#32147818)

You think that there's a problem with standards now? What the hell do you expect to happen when companies are forced to give up their IP if they ever join a consortium?

No, that's not how this should work. More like: This industry body is proposing a standard and has published a specification. Anyone who holds a patent over this standard must speak now or forever hold their peace.

You shouldn't lose your patents by failing to join, you should lose any right to assert them when someone publicly announces in a specified way that they don't think what they're doing infringes anything, and you fail to speak up.

No. Just pay up (2, Insightful)

Anonymous Coward | more than 4 years ago | (#32147222)

The world has moved on. People are already playing their x264 videos and sharing their mkvs. This IS the standard for video. My linux-based sammy TV plays the files just fine.

If you want Linux to play catch-up and odd-man-out yet again and wining about stuff that end-users will never care about like licensing, go on. The world doesn't care about your weirdo software religion and never will. This proposal requires the entire world to change to work. I wouldn't hold my breath for it.

Re:No. Just pay up (2, Informative)

LingNoi (1066278) | more than 4 years ago | (#32147296)

Indeed, Linux and Ubuntu linked in the summary have had H.264 support for years. It's a no brainer for them to pay a license for their OEM distributors to be able to sleep at night. I don't really see that as a "debate" though.

With regards to codecs like Theora I've tried a couple of times to get encode HD video in it but it always comes out blurry. I've seen videos like the HD Theora video on the big buck bunny website so I know it's possible however there doesn't seem to be much information out there on the correct settings. For example how would one convert a clear h.264 HD video to Theora and have it come out with the same quality.

Re:No. Just pay up (4, Insightful)

peragrin (659227) | more than 4 years ago | (#32147352)

but you then can't redistribute said videos.

You buy an HD camera. it records in h.264 The moment you upload it tot he web you are supposed to buy another license for that video. The moment you share that video at your friends house on their TV. You need another license. what's that, you want to transfer that video onto a DVD, that's two more license violations.

I wish people would stop and read more about the licensing issues of H.264 They are currently generous, but MPEG-LA can literally revoke all licenses and make everyone pay fora separate license to create,view, edits, or distributes H.264 video.

Re:No. Just pay up (2, Insightful)

LingNoi (1066278) | more than 4 years ago | (#32147428)

Your HD camera that records in h.264 has a license, the TV you have that plays h264 has a separate license, the video you upload to the web isn't your problem unless you own the site and over 150,000 people view it in which case you're correct and need to pay for a license however I doubt that case is valid for anyone apart from video sharing websites.

I find it humorous that you respond with license FUD to my open invitation to educate me on how I can make Theora work as good as H.264. Should I interpret your response to mean it simply can not perform as well as h264?

Re:No. Just pay up (0)

Anonymous Coward | more than 4 years ago | (#32147546)

You can't *transcode* and expext to get the same results as if you *encode*. It's not a limitation of any particular codec. It's just information theory.

Re:No. Just pay up (5, Informative)

Svartalf (2997) | more than 4 years ago | (#32147624)

Actually, you're not licensed to do it even BEFORE the 150k people viewing it- that's just the threshold at which they have chosen to ENFORCE their IP rights. You technically still need a license for it (Check the licensing details on your gear, even the pro-grade stuff will tell you that you need a separate license for professional uses of the gear. They're not kidding.).

And stating that it's relevant to video sharing sites- they're an enabler, but YOU are the one on the hook, not they (because there's yet another license THEY have to have to do what they're doing...) and you're still needing that license in addition to the one they're paying.

As for Theora being better than h.264... No, you'd be right about that. It's on a rough par with MPEG4- VP8's closer to what you're looking for and if rumor's right Theora 2 will be in that space. Having said that, I'd prefer a web (and others...) standard to be something that's utterly unencumbered. All it'd take is for one player to play grab-em like Unisys did with LZW and you owe money all over the place. It could just as easily as not happen with h.264.

Re:No. Just pay up (3, Interesting)

LetterRip (30937) | more than 4 years ago | (#32147660)

You buy an HD camera. it records in h.264 The moment you upload it tot he web you are supposed to buy another license for that video. The moment you share that video at your friends house on their TV. You need another license. what's that, you want to transfer that video onto a DVD, that's two more license violations.

I wish people would stop and read more about the licensing issues of H.264 They are currently generous, but MPEG-LA can literally revoke all licenses and make everyone pay fora separate license to create,view, edits, or distributes H.264 video.

I've always been curious about this. The patent is obviously required for the creation of the encoding and decoding software. But how can distribution of an already encoded video be in violation of the patent? It doesn't implement the patent, only the results of using the patent. This really needs to be something that the legal basis of needs to be challenged.

Re:No. Just pay up (4, Informative)

Sancho (17056) | more than 4 years ago | (#32147862)

Exactly. It's like creating furniture with a SawStop table saw and the patent holders expecting to get a cut of everything you make with it.

You should buy the right to use the patented technology, and that should be the end of it.

Re:No. Just pay up (1)

Curunir_wolf (588405) | more than 4 years ago | (#32147872)

I've always been curious about this. The patent is obviously required for the creation of the encoding and decoding software. But how can distribution of an already encoded video be in violation of the patent? It doesn't implement the patent, only the results of using the patent. This really needs to be something that the legal basis of needs to be challenged.

Well that's the way patent law works. You have a license to do "A", but not "B". If you want to use our property to do "B", you need new permission to do that.

It needs a big challenge (2, Insightful)

zogger (617870) | more than 4 years ago | (#32147938)

It's completely absurd. I've used an analogy before. Did typewriter manufacturers demand a fee for stuff authors wrote on their machines? They had patents on typewriters. There's your legal precedent, and it gets to the heart of promoting the arts and sciences. These software patents throw a ridiculous roadblock towards that goal.

Independent and concerned folks should stage a mass protest, video each other at outdoor protest sites, swap one dollar with each other for instant copies of what they shoot, on those compact flash things or USB sticks or whatever you use, making the clips be "commercial" as well, then upload the videos all over right then, and challenge those absurd rules. It's called civil disobedience, and large numbers work to get obviously stupid laws changed. Not three guys, but an organized across the nation "day of stupid retarded video software patents challenge", thousands of people, something like that, something that would make the news all over and couldn't be ignored. They just did this a few weeks or so back with reefer laws, mass smoke ins.

I don't do video myself, but seems like if this is really a concern to so many people, interested folks could take this idea and run with it, do a facebook thing, all that social networking jazz a lot of you folks do, pick a day and just do it, organize away, start the chatter, add comments to youtube vids to get the word out, drop comments on blogs of interest, whatever it takes.

OK, I'll offer a date, June 5th upcoming, that's on a Saturday. That's almost a full month to get the word out, "Protect your Right to be Creative with the hardware you purchased day. End software patents. Copyright, yes, patents, NO".

Re:No. Just pay up (0)

Anonymous Coward | more than 4 years ago | (#32147394)

Obeying the law isn't a "weirdo religion".

Re:No. Just pay up (1)

betterunixthanunix (980855) | more than 4 years ago | (#32147452)

End users do not care about licensing costs because it has always been hidden from them. They buy a computer, thinking that the price is for the hardware itself, never being informed that they are also paying for various copyright and patent licenses. If consumers were able to see what they are really paying for, and were presented with real choices (as opposed to the current, "Well, you can have this one low end system with Ubuntu preloaded, or any of these 20 high end systems with Windows"), I think we would see a much different picture.

Flame on, baby, flame on (3, Insightful)

Mindcontrolled (1388007) | more than 4 years ago | (#32147232)

Is completely clueless trolling in the summary the new standard on /. now? What does the fact of a "standard" being "trademarked" have to do with patent issues? How do you compensate patent holders if you invalidate their patent ex post facto? What "mess the government created"? Holy cow, this summary is a new low. Besides, if the author of the summary explicitly states that "he is not stupid", well, we can pretty sure about his intellectual capacity.

Re:Flame on, baby, flame on (0)

Anonymous Coward | more than 4 years ago | (#32147420)

Really? This level of rubbish used to be the standard for Slashdot on a Sunday

Re:Flame on, baby, flame on (2, Insightful)

Vellmont (569020) | more than 4 years ago | (#32147588)


Is completely clueless trolling in the summary the new standard on /. now?

It's not a summary, and it's not "trolling". The paragraph IS the article, and the links are merely poor background information. Though I do agree that there's no apparent connection between trademarks and patents.

You might not agree with the article, and it's largely poorly written and poorly supported. But "trolling" isn't the same thing as a bad article. Honestly, when did "trolling" become just a poorly written article? If anything, I'd say directly attacking someones intellect is trolling.

Given all that, I think the idea of legislating patents applied to industry standards is an interesting idea. It's likely problematic in many ways though. How do you stop people from trying to invalidate any patent by merely making it part of an "industry standard"? Can federal legislation even DO that kind of thing? (There are limits to what the federal government can do). Would it even matter, since standards such as HTML5 are international ones, not US only? Would such legislation have impacts on already existing trade agreements?

The waters seem muddy enough that even if such an approach got traction, I have doubts it would be workable.

Re:Flame on, baby, flame on (2, Insightful)

Blakey Rat (99501) | more than 4 years ago | (#32147760)

The difference between "trolling" and "bad article" is: is it purposefully stupid in order to get outraged replies? Or merely ignorantly stupid.

Since the author here insists he's not stupid, personally, my first inclination would be to call this trolling as well.

Re:Flame on, baby, flame on (4, Insightful)

Mindcontrolled (1388007) | more than 4 years ago | (#32147848)

I called it a troll because it is very hard to lead a rational discussion on patent matters at the best of times. The article at issue here uses very loaded language from the beginning - e.g. the "government-created mess". This is designed to incite a flamefest, in my opinion.

Regardless of the trolling-or-not-issue, the whole topic is half-arsed, not remotely thought through. The questions you are asking are good ones that aim at the heart of the problem. There is a deeper issue, though: What exactly *is* an industry standard for the purpose of this? Who defines it?

Re:Flame on, baby, flame on (1)

Vellmont (569020) | more than 4 years ago | (#32147946)


The article at issue here uses very loaded language from the beginning - e.g. the "government-created mess". This is designed to incite a flamefest, in my opinion.

I think you're being a bit overly sensitive. It's an opinion piece designed to show a point of view. It's not really any different from your average letter to the editor in a local newspaper. Actually probably a bit better than the average one, since the average one tends to be even more poorly worded and thought out. If you really think this article is a troll, then a large percentage of the world is essentially trolls.


There is a deeper issue, though: What exactly *is* an industry standard for the purpose of this? Who defines it?

I thought of that, but both of those are just problems of scope and definition. They're problems to be sure, but they don't strike me as ones that might be fundamentally unsolvable.

Re:Flame on, baby, flame on (0)

Anonymous Coward | more than 4 years ago | (#32147738)

Is completely clueless trolling in the summary the new standard on /. now?

Yes. Time to move on, I think...

You got the government industry bought (4, Interesting)

0xdeadbeef (28836) | more than 4 years ago | (#32147246)

I'm not convinced that industry can solve this mess that government created.

You people are like children. Mommy, let us do this! Mommy, let us do that! Then things don't work out quite the way you wanted them to. Mommy, it's all your fault!

Re:You got the government industry bought (0)

Anonymous Coward | more than 4 years ago | (#32147354)

Right, and how does your comment contribute to finding a solution?

Re:You got the government industry bought (0)

Anonymous Coward | more than 4 years ago | (#32147398)

Right, and how does your comment contribute to finding a solution?

Solution? Slashdot? ROTFLMAO!

Thank you fellow AC. I needed that.

Re:You got the government industry bought (2, Insightful)

Richard_at_work (517087) | more than 4 years ago | (#32147386)

Actually I think its rather a case of the industry members who are getting left behind want a legislative solution to their problem, at the expensive of the industry members who have gained the advantage of a headstart.

Re:You got the government industry bought (2, Insightful)

vyrus128 (747164) | more than 4 years ago | (#32147426)

So you oppose patents, then? Or do you like mommy-granted monopolies, and just start crying when the other children try to get your monopoly taken away? :-P

Fifth Amendment (0, Insightful)

Anonymous Coward | more than 4 years ago | (#32147250)

Any such legislation would reduce the property rights of existing patent-holders and therefore violate the Fifth Amendment. All patent-holders would need to be "justly compensated" for this taking of property.

This is the same reason why copyright terms cannot be shortened, even if you got a bill to do so past the Disney lobby.

Re:Fifth Amendment (3, Insightful)

hedwards (940851) | more than 4 years ago | (#32147350)

No, it wouldn't. Despite pleas from conservatives to the contrary, nobody forces these people to allow the use of their patents in standards. They allow it because it gives them the chance to file massive law suits later on for infringement. Meaning that people have to pay for the license, suit or be left unable to use the standard.

Re:Fifth Amendment (2, Insightful)

Jenming (37265) | more than 4 years ago | (#32147560)

shortening the term would not require compensation any more then prohibition required the compensation of alcohol manufacturer's.

Re:Fifth Amendment (3, Insightful)

Adrian Lopez (2615) | more than 4 years ago | (#32147708)

This is the same reason why copyright terms cannot be shortened, even if you got a bill to do so past the Disney lobby.

Nonsense. For one thing, you can shorten the term of new copyrights without affecting existing copyrights. For another thing, if congress can extend the term of existing copyrights as they did for Disney's latest copyright grab, I think it's only fair that they be allowed to shorten them as well.

There are no property rights in a patent (1)

Skapare (16644) | more than 4 years ago | (#32147912)

Without patents at all, every inventor has equal rights to what he invents. He just doesn't have any protection from those that steal rights from those who don't invent. What a patent really does is, in the name of protecting an inventor's rights from those who steal, it actually steals the rights from subsequent inventors (just because they didn't get a patent first). There is no property right in a patent as that right is always held. Instead, there is the expectation that the government will block the thieves who would steal ... and also those who happened to have invented the same thing. That expectation is being treated as a property.

The original purpose of a patent is to benefit the nation by encouraging invention that would otherwise not happen. Invention that would have happened, anyway, would benefit the nation, anyway. Patenting inventions that would have happened, anyway, actually hurts the nation, because it steals from the alternative inventors, destroys competition (for the term of the patent), and even discourages invention efforts (because of so many inventors doing so many things now, there is little assurance you could be first to the patent office).

Any real property right is not in patents held, but rather, in the fact that others don't hold a patent that takes your property away. So when no one else has the patent, you get to keep the invention you made.

Sure (1)

russlar (1122455) | more than 4 years ago | (#32147252)

Yes, we certainly could declare patents on industry-standards were un-enforcable. But that would deprive a lot of people of a lot of profit, so it will never happen.

Or, we can do the RightThing® (3, Insightful)

Quixotic Raindrop (443129) | more than 4 years ago | (#32147258)

and eliminate Software Patents entirely.

Back in 1988... (5, Interesting)

Kupfernigk (1190345) | more than 4 years ago | (#32147268)

I was in a meeting of our (electrical) industry body discussing how we would work on harmonisation of standards across the EU, with a QC (senior legal counsel) present as adviser. I asked more or less the same question - whether it would be possible to mandate that European law should require that any technology essential to meet a harmonised standard be free of licensing requirements. This would mean that a company making a single product relying on patented technology would only be able to sell it across the EU if the patent was unencumbered by licensing requirements. The reply of learned counsel?

You're a smartass. Everybody hates a smartass.

Re:Back in 1988... (2, Interesting)

Vellmont (569020) | more than 4 years ago | (#32147646)

Heh.

Sounds like the lawyer felt threatened by the idea. He probably thought that if such a law were to take effect, there'd be less need for legal council. Thus his dickish reply.

Yes, but (1)

Kupfernigk (1190345) | more than 4 years ago | (#32147776)

He was the lawyer, I was just a consultant. Guess who was taken notice of?

Yeah that's a fucking great idea (4, Insightful)

Dragoniz3r (992309) | more than 4 years ago | (#32147270)

"I'm sorry sir, your idea has become too successful, we're going to have to take it away from you now."

Is this some sort of joke? This is similar to claiming that is too important to fail, thus the government should take it over and run it "for the people." The real solution is to make sure you can't get patents on trivial algorithms that anyone would come up with, when presented with a particular problem. Not to take away genuinely innovative approaches that just so happen to become popular.
Yes, it's true that most software patents are trivial. But not all are, and the ones that aren't should be protected just like any other innovation or invention.

Re:Yeah that's a fucking great idea (4, Insightful)

loufoque (1400831) | more than 4 years ago | (#32147328)

Is this some sort of joke? This is similar to claiming that is too important to fail, thus the government should take it over and run it "for the people."

I don't see it as a joke, on the contrary I find it very sensible.
I guess it's a matter of political opinion. The government should ensure the best for the people rather than allowing a single company (or consortium) to get royalties for things that have become ubiquitous in today's world, as that is hindering both innovation and regular activity.

Re:Yeah that's a fucking great idea (0)

Anonymous Coward | more than 4 years ago | (#32147732)

unfortunately, in the US, the needs of the very very few outweigh the needs of the many......

Re:Yeah that's a fucking great idea (1)

Sancho (17056) | more than 4 years ago | (#32147916)

The Devil's Advocate would say that H.264 would likely not have become ubiquitous if the creators knew that they wouldn't be able to patent it. It almost certainly wouldn't be as open as it is now. Do you think that Linux would have native H.264 playback if the MPEG-LA had to resort to close-sourcing it rather than relying on patents to protect their codec?

We don't need to get rid of the patents in H.264--what we need is sane licensing. There should be at most two licenses--one covering encoding and one covering decoding. Better would be one license covering both uses, but then they couldn't make it cheap enough to include a decoder in every computer while still making good money from the relative few who produce content with it.

Re:Yeah that's a fucking great idea (0)

Anonymous Coward | more than 4 years ago | (#32147332)

The ones that aren't trivial were published by Knuth more than 20 years ago, and their patents would have expired by now if they'd been filed.

Re:Yeah that's a fucking great idea (0)

Anonymous Coward | more than 4 years ago | (#32147474)

Is this some sort of joke? This is similar to claiming that is too important to fail, thus the government should take it over and run it "for the people." The real solution is ... Not to take away genuinely innovative approaches that just so happen to become popular.

It's not a viewpoint without precedence. Look how many here support action against Apple's "monopoly." Or, going further back in time, Netscape v. Microsoft.

I won't try to debate this, because people have already formed their immutable positions. It's based entirely on what you feel the role of government should be. If you're like me, you find the concept of a non-government granted monopoly absurd.

How about the other way around? (1)

Vellmont (569020) | more than 4 years ago | (#32147782)

Instead of invalidating patents, why not just simply say all standards must not be patent encumbered?

That turns "we're taking your great idea" into "we'll take any great ideas that you don't try to own, lock, stock, and barrel". Everyone knows the real money is always in delivering the solution and maintaining it, not trying to control the idea and own it. Large companies hate this of course, because they know that if they had to compete in a fair marketplace the small shops would eat their lunch since they can out-innovate most of the time (especially with software).

Re:Yeah that's a fucking great idea (0)

Anonymous Coward | more than 4 years ago | (#32147800)

"The real solution is to make sure you can't get patents on trivial algorithms that anyone would come up with, when presented with a particular problem. Not to take away genuinely innovative approaches that just so happen to become popular.

But if we only allow patents for more complex software, won't that encourage developers do do away with the KISS principle and make their code needlessly complicated?

a modest alternative (0)

Anonymous Coward | more than 4 years ago | (#32147294)

How about establishing an industry standard registry web site under the supervision of the Fed. government, where standards could be posted - for a significant fee - and rights holders would have a certain period of time (let's say 18 months) to assert possible claims, including 1) list of patents, copyrights, trademarks, etc. and 2) specific reasons why these might apply. Posting rights assertions would also require a significant fee (per document) to discourage flooding and frivolous claims.

This wouldn't prevent patent trolling, but at least could help avoid some of the scenarios where IP portfolios are bought and sold several times, and years down the road, one of the buyers decides to assert claims against a well established standard like JPEG.

No-Go From the Start (1, Insightful)

The Mighty Buzzard (878441) | more than 4 years ago | (#32147342)

It's an excellent idea that makes huge whopping loads of sense; therefore, it will never even be authored as a bill, much less considered on the floor of any legislative body.

What is an "industry standard?" (3, Insightful)

Registered Coward v2 (447531) | more than 4 years ago | (#32147356)

More appropriately, when does something transition from a "good idea that is sparsely implemented" to an industry standard? If you set the criteria as "defined by an industry organization" (such as ANSI, ASNE) then why would a company allow patented tech into the standard? Would MILSPEC constitute an industry standard? I think the battle point would just change, with companies wanting larger license fees early because they'd lose them later; which would limit the adoption of a standard. In addition, they would have little incentive to allow free licensing to encourage adoption since there's no money at the other end.

I'm not sure what the answer is - perhaps a compulsory license fee that is the same for all users of the technology? Of course, then I could charge a high upfront one time fee, rather than a per unit fee, effectively locking out newcomers.

Of course, eliminating submarine patents would go a long way. If a person has applied for a patent, they should be required to notify a potential infringer when they first notice the infringement, not after the patent being granted. After a certain time limit, the infringer should be grandfathered into non-infringement. If they have been notified, and the patent subsequently is upheld, then the are liable if they failed to modify their infringing item. A separate arbitration board would hear arguments, and if they decide the patent appears to be valid then either they settle or the infringer posts a bond set by the panel. The winner of the eventual suit gets the bond. I would even say that granting the patent, and winning a challenge, would be enough to get the patent holder the bond; since a panel of experts decided the infringement issue earlier but did not rule on the patentability. Alternatively, they could settle both issues at once

Re:What is an "industry standard?" (0)

Anonymous Coward | more than 4 years ago | (#32147570)

MILSPEC is gone. It's been contracted out ot ANSI, and now you have to pay through the nose to access mil specs, even though you're paying through the government to create them.

Re:What is an "industry standard?" (0)

Anonymous Coward | more than 4 years ago | (#32147604)

I think the answer is to legislate that fees cannot be changed once a standard is published. You eliminate patent trolls that way, and you allow honest companies to earn a return on their investment. For example, if you invent a new picture compression technology that becomes an industry standard (GIF) and you license the technology for free when the standard is adopted, you can't change the fees later.

How about the KISS principle? (3, Insightful)

laughingcoyote (762272) | more than 4 years ago | (#32147358)

I think the sheer complexity of this approach alone would have everything everywhere tied up in litigation for years. That alone is a mark against it.

Instead, let's use a simpler method, and take away patents from software, methods, or any other intangibles. That will take away the current minefield where almost any nontrivial software is technically in violation of a patent. And it would make sense.

A brilliant new design for a computer (or a piece of it) can be patented. (Note this means a quantum leap, not an incremental improvement). In the same vein, if you came up with a brilliant new design for a guitar, causing it to weigh 40% less and have a tone quality far better than anything on the market, you could patent that guitar design.

However, if you came up with some brilliant new chords that this guitar can play, you can't and shouldn't be able to patent those. Even if they're brilliant, even if you're the first to ever play them. You can copyright any songs you write with them, of course. But you can't keep someone else from using the same concept in their own songs.

Software is the same as the music. It is the unpatentable intangible played on the patentable tangible. You can copyright it, but you should not be able to stop someone from independently create something interoperable.

Re:How about the KISS principle? (1)

ArsonSmith (13997) | more than 4 years ago | (#32147788)

(Note this means a quantum leap...

a leap of the shortest distance possible that has any meaning in physics?

Re:How about the KISS principle? (0)

Anonymous Coward | more than 4 years ago | (#32147898)

Ask most people what they consider a large collection of characters in an organized manner and they will call it a book. Print out a program's source on paper and that will resemble a book too. Total programs should be copyrightable, but not patentable.

The patent was created to allow an inventor to create something and profit from its manufacturing. Such inventions were often easy to recreate and therefore easily stolen. The patent protected the huge expense of manufacturing your product and protecting your investment for a minimum time.

Yes, clarify the invalidity of software patents (3, Insightful)

ciaran_o_riordan (662132) | more than 4 years ago | (#32147380)

Patent legislation in the USA is very unclear on questions about whether it should apply to software. That's why it's always ignored in the debate, with everyone focussing on the rulings from the CAFC and the Supreme Court. There is good grounds for saying the legislation excludes software ideas, since the Constitution only allows patents where they promote the progress of useful arts - and all the studies say software patents impede such progress.

A flat exclusion of software from patentability is one solution, and its the best one. Other possibilities include an exclusion of liability when using ideas for the purpose of compatibility. That wouldn't fix all problems, but it would fix the h.264 and other file format problems.

Related info on en.swpat.org:

Obvious back door to breaking the system... (3, Insightful)

sribe (304414) | more than 4 years ago | (#32147384)

So, basically, your idea is that if a patented "invention" turns out to be really important and useful, the patent should be rendered unenforceable. Yeah, good luck sneaking that proposal through ;-)

Wow, that makes so much sense! (1, Troll)

dptalia (804960) | more than 4 years ago | (#32147436)

Oh sure, lets get the government involved in this! Because they're:
Efficient
Looking out for the people
Focused
Not interested in pork
Uninfluenced by patent holders

Re:Wow, that makes so much sense! (1)

Vellmont (569020) | more than 4 years ago | (#32147850)


Oh sure, lets get the government involved in this! Because they're:
Efficient
Looking out for the people
Focused
Not interested in pork
Uninfluenced by patent holders

And who should be involved in this that meets those criteria, business? If you think business is "efficient", then you haven't looked terribly deeply into business. The other ones I don't even think anyone has any serious beliefs business is any good at. People only accuse government of all the things you describe because we have a big public window into it's operations.

Re:Wow, that makes so much sense! (1)

dptalia (804960) | more than 4 years ago | (#32147936)

The honest truth is NOTHING is efficient. And NOTHING is really interested in anything other than collecting as much power as possible/maintaining the status quo.

I'm merely saying that expecting a solution from the government is silly. So is expecting one from industry.

However, if over time this truly becomes enough of a problem, the market will end up coming up with a solution. Right now - we're so below critical mass that expecting anything to crystallize out of the chaos is unreasonable.

Violation of TRIPS (4, Informative)

hweimer (709734) | more than 4 years ago | (#32147456)

We could solve the H.264 debate if a country's legislature were to mandate that any patents that contribute to an industry-recognized standard were unenforceable in the application of that standard.

I have read until here. What you propose is unfortunately not allowed under the TRIPS agreement [wikipedia.org] , which requires that once that a patent has been granted, the holder must be able to enforce it. While there can be exceptions to this rule, I highly doubt that a country trying to get rid of the H.264 patents that way will get away with it.

If a legislative body wants to fight these patents, the best thing it can do is to require the use of unencumbered technologies in the government.

No (5, Interesting)

Kjella (173770) | more than 4 years ago | (#32147470)

I don't think it'll in any way be practical to expropriate that IP, which is essentially what you are talking about. However, that is not the biggest problem with patents. The biggest problem with patents is that a standard is never proven patent free, only that no claim of infringement has been made against it yet. This is why I would like standards bodies to have the ability to call for patents, and any patent claim not made within a reasonable time frame is forfeit as related to that standard. A relevant current example is Theora - they claim it's patent free but is it really? What if someone like ISO or ITU-T could publish the standard, demand that any patent claims must be done within three months and if none were made you knew with 100% certainty that any later claims are null and void? It would be wonderful. I don't see this as a way of freeing IP, but it would go a long way of reducing patent FUD and submarine patents. Even if it should turn out to be patented you know which bits and could work to remove those and try again.

H.265 (0)

Anonymous Coward | more than 4 years ago | (#32147472)

Patents system is based on 18th Century technology (2, Interesting)

copponex (13876) | more than 4 years ago | (#32147498)

Some of the founders were worried that the patent system wouldn't allow enough time for inventions to spread, as America had a much greater land mass than England. That's how out of date this idea is.

Software patents are totally worthless. All they do is impede progress. Consider a software patent on controlling a lawn mower. You could patent this idea. Could you patent lawnmowers? Of course not - patenting the idea of cutting grass can be laughed off by everyone, except for a few lawyers and jurors in East Texas. Adding the abstraction of software control does not make the idea new or worth protecting.

What people don't realize is that you could never patent the end result of an invention, only the particular way in which you solved the problem. With software, they are patenting end results, saying adding accelerometers with a touch screen that has a cellular radio is revolutionary, or that providing a video stream with a certain open codec on a computer needs to be protected. Well, no it doesn't. Protecting the certain way in which you use software, hardware, and branding to release your product is protected under copyright and trademark.

Intel should not be allowed to patent passing data through the light spectrum. Similarly, anyone who releases their codec as an open standard cannot patent playing back the codec, if someone figured out a way to do it with their own different software.

Nokia/Apple (0)

Anonymous Coward | more than 4 years ago | (#32147530)

Yeah - but then Nokia would loose it's patent fight with Apple..

... and the same for DAB? (1)

andyh-rayleigh (512868) | more than 4 years ago | (#32147554)

If that approach were to be applied to the "analogue switchoff" in UK radio then it would have to be delayed until Philips relinquished, or at least freed, their bundle of patents that puts about £10 on every DAB radio.

Hmmm, that's a good idea.

No IP if it is worth it? (1)

barfy (256323) | more than 4 years ago | (#32147558)

No to patents, if it gets in the way or makes things tough? Really? Then the value of patents is zero?

This is not the right argument.

Not going to happen (1)

Billly Gates (198444) | more than 4 years ago | (#32147642)

If such a bill became law tomorrow the h.264 and html 5 were made before teh law and therefore under the grandfather clause would not be valid.

There is already an article that would allow this (1)

kanweg (771128) | more than 4 years ago | (#32147644)

I can't give a percentage of patent laws that have it, but it is not unheard of that a patent law contains an article that deals with appropriation of a patent. This is used in very restricted cases. For example, in case of a severe disease, a pharmaceutical company can't hold a country at ransom. The loophole exists that the patent is appropriated, and if properly done the company will be compensated (but not as much as the ransom). I believe that Brazil did this a couple of years ago (with respect to an AIDS drug). Economical reasons may also be case.

It is extraordinary rare that the article is used (don't know whether US patent law has it), but it just takes some action on the part of the government and a stack of money to boost the economy by giving anyone free access to a particular piece of technology, if that piece of technology is crucial and we can't afford to sit out the 20 year term before the patent lapses.

Bert

Is this a joke article? (0)

Anonymous Coward | more than 4 years ago | (#32147680)

This is pretty awful, even by Slashdot standards.

Wow. (0)

Anonymous Coward | more than 4 years ago | (#32147688)

Communist.

What about a one year notification period? (1)

Glass Goldfish (1492293) | more than 4 years ago | (#32147704)

I would rather front load the lawsuits. If a group of "industry leaders" with a "significant presence" in a field want a license-less standard, it shouldn't have hidden liability. A one year notification starts and anyone who states that the standard violates their patents can complain at the start. If someone makes a reasonable (as in a judge agrees) complaint of violation, the clock stops on the notification. The standard would have to be revised or the patent would have to be found to be invalid. Once the year long notification is over, you can't make a patent claim against the standard. Companies operating in a particular field with applicable patents will know what standards are coming out (I guarantee there would be at least a dozen websites related). And it's easier for them to nip a patent violating standard in the notification phase rather than sue a large number of unwary companies, unless patent trolling is in their business model.

There would be complications related to determining what constitutes "industry leaders" or a "significant presence", but there will be lawyers involved anyway. It's just better to bring them in at the start.

Great Idea (1)

Compaqt (1758360) | more than 4 years ago | (#32147824)

I've said something along the same lines in posts on this subject over the past few weeks:

The government should seize the H.264 patents via eminent domain or other legal structure, compensate the parties involved with a one-time payment, and make the patents freely available for all.

Governmental use of a patented invention is viewed as an eminent domain taking [about.com] of a license under the patent and not as a tort.

The reasoning is the same as for seizure of real property which stands in the way of a public purpose (road, fort, etc.).

The public purpose for freely shareable audio/video seems quite clear, especially if H.264 is going to be mandated (even indirectly) through various government decrees, regulations, etc., or even if the government adopts an existing industry standard.

Can't ever be done in the US .. here's why (2, Informative)

gd23ka (324741) | more than 4 years ago | (#32147830)

Article the seventh [Amendment V]

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

---> It's the last half sentence here ... ; nor shall private property taken for public use, without just compensation http://www.half-bakery.com/

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