But what if Google were to try to change the rules? SFLC says:
There is some valid concern that the VP8 licensors could subsequently change or withdraw the offer of retroactive release. The license could be improved by a promise not to do so. But the law doesn't reward manipulation; if the retroactive release appears in the final, published license, the VP8 licensors may well be estopped from subsequently seeking to enjoin developers or distributors who have relied on it in good faith.
In other words, having led us all to rely on this cross-license as a safe haven for VP8 developers, both Google and the MPEG-LA licensors on whose behalf they are acting and accumulating reciprocal licenses would have a hard time convincing a judge that someone was at fault for relying on the availability of a retroactive license -- a doctrine called "equitable estoppel."
Other experts I've consulted add one more point: Companies implementing hardware and embedding video software are very cautious. They aim to avoid all risk their devices may be stopped at customs as a result of the sort of injunctions multiple actors are seeking in the mobile patent wars today. These OEMs like to have a positive indemnity document rather than just a logical assurance there's no problem.
Several people I've spoken with have told me that Google does not think anyone actually needs a license from MPEG-LA for VP8, but fear, uncertainty, and doubt on the subject have slowed progress so much that they had to get positive reassurance for their OEMs. That's the reason this cross-license exists -- not because there's any known risk from MPEG-LA, but because certain nervous companies demanded assurance in writing.
At this point I'm satisfied. I think Google has done all it can to deal with a difficult problem -- the uneasiness of OEMs in the face of a powerful anticompetitive force in the market -- while keeping open source implementation possible. Though Google's problems with Nokia and VP8 are still live, I believe this lays to rest the FUD created by MPEG-LA when it first announced a VP8 patent pool back in 2011.
Several commentators have also incorrectly associated my article with OSI. While I am indeed the president of the Open Source Initiative, I have several other affiliations. Nothing I write here or elsewhere is on behalf of OSI or any other party unless I explicitly say it is.
WIth this publication by SFLC of their opinion about Google's VP8 patent cross-license, it's worth revisiting the real problem: software patents. This whole mess only arises because of the invasive application of the business models of nonsoftware industries to the technology of the Internet. Not all business models are welcome or valid; the Web has become what it is today without tolerating "standards" that rely on patents. There's no reason we should start tolerating them now.
SFLC's opinion is not a validation of patent licensing like the parasitic Microsoft business around Android. Rather, it is a pragmatic response to OEM concerns, providing a solution most of us shouldn't need to care about to an attempt by incumbents to veto innovation. As TechDirt says, allowing incumbents to veto innovation is bad for society; perhaps it's even an antitrust problem. Until we see meaningful patent reform, this sort of situation will keep arising to slow down progress.
This article, "Google's VP8 codec license is OK after all," was originally published at InfoWorld.com. Read more of the Open Sources blog and follow the latest developments in open source at InfoWorld.com. For the latest business technology news, followInfoWorld.com on Twitter.