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Re: MP3 decoder packaged with XMMS

Thanks very much to Mr. Moffitt for weighing in!

On 7/15/05, Jack Moffitt <jack@xiph.org> wrote:
> Just a quick note on this thread.  Time seems to have erased the memory
> of Thompson going after everyone.  8hz-enc, bladeenc, lame, and many
> other projects have shut down (from cease and desist letters) or refuse
> to distribute binaries because the MP3 suite of patents _is_ actively
> enforced.  Try going out and finding unlicensed implementations outside
> the Free Software and Open Source worlds. That out of the way, I will
> address the issues raised below.

That's entirely consistent with my (much less informed) understanding
of the history.  It would be very interesting to know whether the
statement at http://ballsome.org/index.php/news/100 reflects their
present policy, and if so whether it would offer some degree of
equitable-estoppel-based safe harbor for distributors who can
demonstrate substantial non-infringing uses as a defense against
contributory infringement.  There's no shame, and potentially much
advantage, in providing cross-conversion tools between a genuinely
free format and the current market leader.

> I don't believe there are wavelet transforms in Ogg Vorbis.  These are
> planned for some future incompatible update.

Can you point me to a brief but technical summary of some of the Ogg
Vorbis codecs?  I would be curious to compare them against the MP3
techniques, about which I know at least a little bit.

> Before we released Ogg Vorbis beta 1, we did indeed hire a patent
> specializing attorney to go over the MP3 suite of patents.  He only
> thought it necessary to issue a formal opinion on a single one of these
> patents.  We were advised by him, and other attorney's, that the
> specifics of this opinion could not be divulged publically.  Since that
> time (around 2000,2001 I believe), I believe several companies have also
> had lawyers look over this issue.  RedHat ships Ogg Vorbis, and they are
> obviously aware of these patent problems due to their removal of MP3
> related software, so I assume they made this decision based on sound
> legal advice.  I don't believe anyone is going to publically share their
> findings any more than we have for the same reasons our lawyer original
> gave.

That's understandable.  Any chance you could at least identify which
patent warranted a formal opinion?

> New patents come up all the time.  No one can afford to keep track of
> them all, or to have attorney's issue legal opinions on anything
> related.  We have done informal, but educated, analysis on many patents
> that others have brought to our attention, and never found anything
> worth troubling a lawyer over.  Also, we originally intended the
> patent-free part of our software, so we based many algorithms on old,
> widely published results, and avoided many methods that would lead to
> patent trouble.

Can you enlarge at all on your approach to "duty of due care"?  I have
only recently run across Knorr-Bremse and am ignorant of how this
works in practice when the patents are flying thick and fast.

> Many large corporations ship Ogg Vorbis with their products, including
> Microsoft, RealNetworks, EA Games, and many more.  There are plenty of
> billion dollar companies to go after for infringement, should
> infringement actually be occuring due to Ogg Vorbis.  The fact the none
> of these companies has been, to anyone's knowledge, threatened with
> litigation over related patents speaks volumes.  We've been around for 5
> years, and we've taken this issue seriously the entire time.

Absolutely it speaks volumes on the risk management front.  But
Microsoft, for instance, pays out rather frequently to settle IP
suits, sometimes for reasons only peripherally related to their
validity; and I don't think watching what the big boys do counts as
due care.

> What I have said above we thought was common knowledge.  There are
> probably very few Free Software projects that have dealt with this issue
> as seriously as Xiph.org.

That's why I put you to the trouble of commenting; I thought
debian-legal needed a little injection of educated opinion from
someone with a first-hand clue.  Common knowledge seems to fade as
rapidly as common sense.

> One last note:  I am still on the board of the Xiph.org Foundation, but
> Monty <monty@xiph.org> is currently the Executive Director.  Tom
> Rosedale is our current legal counsel, but was not the attorney who did
> the patent review, nor was he actively involved with us at the time the
> patent review was done.

I hope I haven't put you to any trouble or expense by copying Mr.
Rosedale; some people prefer to have their legal counsel copied on
such issues when they list contact information on a page like
http://www.xiph.org/contact/ .  I've added Mr. Montgomery on this
follow-up; please drop Mr. Rosedale if it's not necessary for him to
be involved.

> Feel free to continue copying me on the discussion.  As a fellow debian
> developer, I'm quite interested in this issue from both sides.

Thank you again for responding quickly and intelligently.  You and
Xiph.org have my best wishes.

- Michael

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