ffmpeg, VLC and its associated projects are hosted in France. There aren't any US companies for the MAFIAA to shakedown, and if they tried to file for software patent infringement in France, the French courts would tell them to fuck off.
So they go after ffmpeg's US-based users/customers instead.
Which is why you always present your patent as if it were a mechanical machine. Then in court you need to prove how their mechanism of instructions for a general purpose solver(software) is the same as your patent mechanism.
This is sort of a half-joke, But honestly I would not have a problem with software patents if they had to be filed in this manner. The problem I have is with patents that are "existing device (on a computer)" as if putting it on a computer was novel.
I feel that patents are a critical legal device. I think having economic exploitation protection for your novel mechanism is an important thing. However there are enough people exploiting the patent system itself that it does need some reform. However I am uncertain what that reform should be. A stricter interpretation of novel? a tighter interpretation of infringement? Honestly I am worried about the law of unintended consequences here.
> I think having economic exploitation protection for your novel mechanism is an important thing.
Sure. But if it's software: fuck off and use copyright. If people copy you, you're injured, you can show they copied you and obtain damages/injunctions. But if you want monopoly control over an idea, no matter who else comes up with it... that's rent-seeking.
Patents don't offer monopolies for fun, they're supposed to advance society by offering incentives for disclosure. The amount of incentive, and the likelyhood of non-disclosure was very different in the past, it certainly doesn't fit for computer software, so soceity shouldn't continue to offer that pact for computer software.
There are over 300 French patents in the H.264 license pool, and the very first one looks like a software patent to me, and I suspect most of the rest are the software patents that you confidently claim don't exist.
Maybe the examiner erred in issuing it then, and it needs to be cancelled because it's non-patentable subject matter as per Article 52 of the European Patent Convention.
I don't know how I can be clearer about that. It's literally not allowed, and you think the first one you've looked at has somehow escaped the very direct statement that programs for computers are not patentable subject matter
Perhaps if you'll cite any of those French patents (I note you alluded to "over 300" but managed not to cite any), we can get started on the cancellations
The first patent you found is Danish - though is issued in several jurisdictions simultaneously via the EPO.
And yes, it is carefully written to not imply it's patenting a computer program, and yet try to get the maximum "I'll sneak this past the examiners because I really want to patent computer programs" without actually breaching their direct rules about what are and aren't computer programs (and what is and isn't a technical solution, and what is and isn't novel).
So if you want to say "looks like a software patent", the EPO would disagree directly with you, as they literally followed their rules saying don't do that - but the adversary is also trying their best to get software-implementation-fucking patent claims despite those rules. I'd like the EPO to be even stricter, and reject even more claims.
I'm a little confused what your argument is, then. You claim that software is not patentable in the EU, but then accept that some companies manage to get software patented in EU countries by writing their patents creatively.
So... software is patentable in the EU, at least in some circumstances. That's the end result, even if technically it's not allowed.
Unless these patents in question don't actually cover video codec software, which it seems they do?
The ultimate test, of course, is if these patents would stand up in court. But it seems no one has challenged them? Which indicates to me that either a) people believes they would hold up in court, and so they don't try to challenge them, or b) no one is sure, and is afraid to find out. Either outcome has the end result of "software can be patented in the EU sometimes".
I'd say it's the difference between a country where stealing is a crime, but some people commit that crime anyway, and sometimes the stealing isn't detected, and sometimes it's detected but it's not worth the cost of prosecuting the thief... versus a country with laws like "steal all you want! it's not a crime at all! in fact we actively encourage it! stealing is great!"
jcranmer is trying to convince you that there is no difference between these two positions, because, technically, in both there is at least some stealing.
But they're not the same. Let's go back to the top-level question. Why is a US-based wrapper for a French library choosing to pre-emptively delete all binaries it has ever produced and completely shut down, out of fear of unstated legal actions, while the French library has been in active development for 25 years, and -- if software patents weren't explicitly illegal there -- would likely have been sued to oblivion by the same people who menace the USA.
Instead of trying to put words in my mouth, let me just say what I think:
I believe software patents are no more legal in the US than they are in the EU, and this is based on SCOTUS precedent in the US that makes the legal argument for software patents very sketchy. In a just world, that would mean that pretty much all of the MPEG-LA's patent portfolio should be worthless. But I suspect that in both the US and the EU, the fig leaf of "but I didn't patent the software algorithm, I patented the hardware running the software algorithm" is sufficient to get it granted and survive scrutiny to get it invalidated.
I don't have the time to look up the court case history of the EU--and I know that the EU is a civil law jurisdiction so the court case history isn't precedential in the same way it is in the US--but I would not be shocked if there have been cases that have upheld these software patents, despite the seemingly clear language in the treaties that software patents don't exist. Because the legal field is one wherein the "obvious" definition of software patent isn't necessarily the same as the legal definition.
The reality is that MPEG-LA positively asserts that it has a buttload of EU patents it can sic on your ass for violating, and were I being sued by them, I wouldn't be willing to bet that "but software patents are illegal!" is a winning defense.
If you were to look it up, you'd find the European Patent Office (EPO) runs its own courts; boards of appeal, like the USPTO PTAB/BPAI. It set precedents on itself with appeal decisions and opinions. However, it is the member states (party to the European Patent Convention (EPC)) that enforce the patents they allow the EPO to issue in their name, and they all have their own laws and courts. There has been a recent development where some of the member states entered into a unitary patent court agreement.
The EPO has widened and narrowed the scope of what it considers patentable, and that gives people trying to purposefully get a patent on something that is clearly software either more or less leeway. Obviously I'd like the EPO to be even less forgiving.
But I don't think we're going to get anywhere. The EPO neither has perfect enforcement of its no-software-patents rule, nor is it easily hoodwinked with This One Simple Trick of saying it's a hardware device. The reality is in the middle, and neither of us has a good set of comparative statistics or case studies to contrast the differing EPO and USPTO approaches, so we should probably stop.
But I stick by my original claim: I believe the reason ffmpeg and VLC have not been sued to oblivion is because they're legally based in France, where the MPEG-LA's practises aren't tolerated. The support of a "no software patents" country/government/society encouraged them to develop ffmpeg without fear; the fear we see on display here today in the USA.
> I believe the reason ffmpeg and VLC have not been sued to oblivion is because they're legally based in France, where the MPEG-LA's practises aren't tolerated. The support of a "no software patents" country/government/society encouraged them to develop ffmpeg without fear; the fear we see on display here today in the USA.
I strongly doubt that's the reason. Until recently, it was quite easy to sue anybody in your favorite court in the US on the flimsiest of grounds, and even after SCOTUS said "you need more than 'they sell things here' to establish jurisdiction and venue," the patent-friendly judge in West Texas seems to be trying his hardest not to listen. No, I suspect the reason is much simpler: an open source project doesn't hold enough money to be worth the cost it takes to litigate (on the order of millions of dollars).
Either those patents are invalid or they are not French.
Article L611-10:
...
2. Ne sont pas considérées comme des inventions au sens du premier alinéa du présent article notamment :
a) Les découvertes ainsi que les théories scientifiques et les méthodes mathématiques ;
b) Les créations esthétiques ;
c) Les plans, principes et méthodes dans l'exercice d'activités intellectuelles, en matière de jeu ou dans le domaine des activités économiques, ainsi que les programmes d'ordinateurs ;
My suspicion is that software is no less patentable in France (or the EU as a whole) than it is in the US. Which is to say, throw in a generic processor and it's kosher enough to get granted. (Even in the US, Alice says that "do it on a computer" isn't enough to get granted but... that's exactly what happens, and given the long, long list of European patents in the video codec space, it's clearly happening just as much in the EU).
Any software you write, or even run, may or may not infringe some half-assed patent, and you will never know until the troll wielding it and deliberately trying to keep it hidden, pounces on you, usually demanding money, threatening to use their government-backed exclusive rights to their "invention" so you either pay what they ask, do what they ask, or they sue you for infringement and sometimes win. Larger companies have large troves of patents and they really don't care what's in them, they care that they have lots and you don't, and they can use them to crush you in court unless you give in to whatever they demand.
Some companies you know of may already have given in, and may already be paying licensing fees to patent holders. It sickens me.
I'm not suggesting, I'm telling you there is an entity, formerly MPEG-LA, now Via Licensing Corp, who maintain a pool of patents that supposedly claim exclusive rights to aspects of some of the video codecs implemented in FFMPEG.
If they hear you're making money, and you use video codecs -- ffmpeg's implementation or otherwise -- they may come to shake you down. They get to pick and choose who they accuse of patent infringement. They can do it at any time (before the expiry of the last patent in the pool). They can do it at the point where they'll have maximum leverage over you. Software patents give them that opportunity.
Should they get in touch with you, your response should be made in consultation with qualified lawyers.
> Q: Bottom line: Should I be worried about patent issues if I use FFmpeg?
> A: Are you a private user working with FFmpeg for your own personal purposes? If so, there is remarkably little reason to be concerned. Are you using FFmpeg in a commercial software product? Read on to the next question...
> Q: Is it perfectly alright to incorporate the whole FFmpeg core into my own commercial product?
> A: You might have a problem here. There have been cases where companies have used FFmpeg in their products. These companies found out that once you start trying to make money from patented technologies, the owners of the patents will come after their licensing fees. Notably, MPEG LA is vigilant and diligent about collecting for MPEG-related technologies.
So they go after ffmpeg's US-based users/customers instead.