Libre Video

The issues surrounding the nature of content created using the AVC/H.264 video specification, which includes the video produced by most camcorders, digital cameras, and cell phones in use today, have confused many people.  In fact, people on both sides of the issue have made contradictory claims and rarely, if ever, were such claims based on actual facts, but rather, either speculation or misunderstanding of the issues that come into play.

One notable mention that came-up during the heated debate of which codec should be used in the HTML5 <video> tag was Ben Schwartz‘s posting, No, you can’t do that with H.264. Ben avoided the mistakes committed by most by explicitly referencing the legal terms found in the documentation of professional products, including Final Cut Pro as well as Windows 7 Ultimate.

In the interest of clarifying the ambiguous claims regarding the licensing terms of using the AVC/H.264 video technology, Libre Video has taken the time over the past few weeks to contact the MPEG-LA directly, the licensing authority responsible for administering the patent pool for the H.264 specification.  We have asked them various questions related to what we feel are important issues surrounding the terms under which normal people are permitted to use hardware products that they have purchased and the resulting multimedia content created with them.  This communication happened via a series of e-mails over a little more than one week that we have compiled together here.  They graciously answered our queries to the extent that we can draw some concrete conclusions related to what users can and cannot do according to the licensing terms they are generally granted.

It should be said very clearly at this point that I am not a lawyer, so the conclusions made in this article cannot be taken as legal advice or in any other legal manner.  They are just the results of our research into this very important issue for users of consumer and/or professional video products.

The full text of our communication with the MPEG-LA is included below, but the gist of the discussion reaches the following conclusions:

1. AVC licensing only covers end-products.  What this means is that you owe royalties to the MPEG-LA (or, more specifically, the companies that they represent) only if your distributed end product uses the H.264 specification.  So, if you first convert your H.264 video to another format (for example, to Theora), then you will not owe royalties tied to your media’s distribution.  This means a video that started off covered by the AVC patent portfolio is not “poisoned”.  Once it is no longer H.264, it is free from obligations to the MPEG-LA.  This point counters some possible FUD that has existed related to licensing previously.
2. All licensing of AVC technology in consumer products (and, in fact, in professional products) that we have seen to date has the very specific line mentioning that the license is only for private/personal, non-commercial usage.  What this means is that one may not share their H.264-encoded video on, say, a DVD that one sells or charges money for.  Even if they paid $10,000 for the camera that recorded it.  This is the restricted license that the MPEG-LA extends to the users of a licensee’s end product.
3. As AVC licensing covers only end products, a license to decode in one product, like a camcorder, does not grant an end user a license to decode in, say, his or her computer.  For example, one of the most common H.264 decoders happens to be a part of the free software ffmpeg project.  There is no licensing agreement between the ffmpeg project and the MPEG-LA, so it may not be used to decode H.264 video without violating the patent rights the MPEG-LA asserts over the AVC patent portfolio.
4. Because the license for AVC is on end-products, it seems that the license to decode H.264 cannot be extended to derivative software products.  One very serious conclusion that may be drawn from this is that it is impossible to implement a free software implementation of H.264.  Even if a software project, say ffmpeg, were to conclude a license with the MPEG-LA to cover their end-product (the ffmpeg package itself), any derivative products built on this software would most likely be considered different end products that would need to have their own license.  This is a violation of one of the four essential software freedoms.
5. Related to point #2, it may not be possible to release an H.264-encoded video under, for example, a Creative Commons license that allows commercial usage.  More precisely, should you release your H.264-encoded content under such a license, it would not be legally usable under such a license.  This cuts out a large portion of options related to how you may share your creative content.

While it is true that anyone familiar with the AVC Patent Portfolio licensing terms may not actually be surprised by the conclusions arrived at here, the fact of the matter is such a conclusion is far from expected from someone who buys a camcorder and records, distributes, and sells their own videos.  In fact, one’s own creativity and what you may do with your own content is dictated, legally, by the technology used to create it, and this is enabled because of the situation we find ourselves in due to software patents.

The full text of my e-mail conversation with Ryan Rodriguez, a licensing associate at the MPEG-LA, follows, in chronological order.  The only edits I have made are related to formatting and to remove personal contact information.  Comments explaining the messages can be found before & after each one.

This is my original e-mail.

Date: Mon, 24 May 2010 12:31:11 -0400
From: Basil Mohamed Gohar
To: Licensing-web@mpegla.com
Subject: Question about licensing related to consumer video products

I would like to inquire about the following case of usage that I think
is quite common nowadays, and what licensing fees might be applicable to
such usage.

I purchase a product, such as a Canon digital camera, that has a video
recording feature which produces H.264-compliant video in an MP4 video
container format.  Note that said products generally have a clause in
their manual explaining that usage of H.264 with said device is
explicitly for personal, non-commercial usage.

I then take this video file and transcode it into another video format,
say, Ogg Theora or WebM, or something else that does not have a
licensing fee related to its usage.

I then would like to release said work under a Creative Commons
Attribute Share-Alike 3.0 US license.  Note that such a license *does*
allow commercial usages.  You can ignore the specific license, the point
is, said transcoded work is released under a license that allows
commercial usage and redistribution in a free/libre manner.

For the purposes of demonstration, let’s say the video I recorded and
then released was exactly 30 minutes long.

The only role H.264 played was in the original capture of the video.  It
existed only on the camera as well as on my computer after copying.  I
may keep this file for archival purposes, but I do not intend on
releasing it for commercial purposes.

Would licensing fees related to the usage of the H.264 spec in the
above-outlined scenario be applicable?

Additionally, I would request that I can share your response to this
question of mine on librevideo.org, the contents of which are CC-BY-SA
3.0 US (http://creativecommons.org/licenses/by-sa/3.0/us/).  I think the
answer is something many people have been seeking, and for which
licensing terms and explanations by others have been very confusing to
the lay person who is the actual target user of said products.

Thank you in advance for your explanation.

Sincerely,

Basil Mohamed Gohar, Libre Video (http://librevideo.org)

This is the first response I received from Ryan.

Subject: RE: Question about licensing related to consumer video products
Date: Wed, 26 May 2010 07:49:18 -0600
From: “Ryan Rodriguez”
To: “Basil Mohamed Gohar”

Dear Mr. Gohar,

Thank you for your message and for your interest in MPEG LA.  We
appreciate hearing from you and will be happy to assist you.

As you seem to be aware, MPEG LA offers our AVC Patent Portfolio License
which provides coverage under patents that are essential for use of the
AVC/H.264 Standard (also referred to as MPEG-4 Part 10).  Under the AVC
License, coverage is provided for end products and video services that
include AVC/H.264 functionality.  Accordingly, the party offering such
end products and services to end users concludes the AVC License and is
responsible for paying the applicable royalties.

Further, included in the royalty paid by a Licensee for its AVC Products
is the limited right for a Consumer to use such products for their own
personal, non-commercial use (for example, to participate in a
teleconference or to view personal video content).  But, when a
Licensee’s products are used for purposes other than a Consumer’s own
personal use (for example, to provide AVC Video for remuneration or to
incorporate the Licensee’s product into a third-party’s branded end
product), then the third-party using the AVC Product may need to
conclude its own AVC License and will be responsible for paying the
applicable royalties associated with the end products/video it
distributes.

Based on your explanation, I understand that your company plans to use
Canon’s AVC Product for internal purposes and will not offer its own
branded AVC Product or AVC Video to End Users.  In that case, no further
coverage would be provided and no further royalties would be payable
under our AVC License.  With that said, I note that Canon has not yet
signed our AVC License.  Therefore, it is in your company’s best
interest to use products only from licensed suppliers. For that purpose,
MPEG LA maintains a list of Licensees in Good Standing to our AVC
License in the AVC portion of our website,
http://www.mpegla.com/main/programs/AVC/Pages/Licensees.aspx.

I hope this is helpful.  If you have additional questions or need
further assistance, please feel free to contact me directly.

Best regards,

Ryan

Ryan M. Rodriguez
Licensing Associate
MPEG LA

Ryan mentions here that the license covers end products & services.  Also mentioned is the limited licensing that is received by consumers of said end products & services – namely, for personal & non-commercial usage.  Should a consumer want to use an AVC video for more than personal & non-commercial usage, then they will need to get a separate license for such uses.

It’s interesting to note that my choice in mentioned Canon as an example company revealed that they are not currently licensed, a situation I find curious as they are still selling products.

Date: Wed, 26 May 2010 10:04:18 -0400
From: Basil Mohamed Gohar
To: Ryan Rodriguez
Subject: Re: Question about licensing related to consumer video products

Mr. Rodriguez,

Thank you for taking the time to respond to my inquiry.  I have a few
more questions, if you don’t mind.

Firstly, I would like to be clear about the scope of the licensing fee.
If the AVC/H.264-encoded video was used in an intermediate stage of
production, such as capture and/or editing, but is not used in the
actual work that is distributed to others (because it would have been
converted to a different format for distribution), then no further
licensing is needed.  So, in other words, an additional license is
needed only for distributing AVC/H.264-encoded video which is beyond
personal, non-commercial use.  I hope I am clear in what I am saying.

Secondly, I did not realize that Canon has not signed the AVC license.
However, they use, for example, the AVCHD codec in many of their
products, including some of their higher-end Digital SLR products as
well as their HD camcorders, such as the VIXIA line.  I am confused how
they can do this if they have not yet signed the AVC license.  Are they
licensing directly with the patent holders?  How is it possible, then?

Thirdly, I would like to ask again if it would be alright to share this
information as per my request in my original e-mail, such as by posting
on the librevideo.org website.  This is information that I believe will
answer a lot of questions people have had regarding the terms of
licensing AVC/H.264 video.  I know that ambiguity around this issue has
actually prevented me from buying a product that utilizes H.264
technology until now.  I am not a lawyer, so I am not well-equipped to
understand the licensing terms.  I believe the same is true for the
majority of people that will actually be users of products utilizing
this technology.

Thank you again for your time.

Sincerely,

Basil Mohamed Gohar

To make sure I understood exactly what was being said, I restated it in my own words as I understood.  I also made sure to reiterate my request to share the communication on Libre Video to be completely in the clear, legally.

Subject: RE: Question about licensing related to consumer video products
Date: Thu, 27 May 2010 14:35:06 -0600
From: “Ryan Rodriguez”
To: “Basil Mohamed Gohar”

Hi, Basil.

You are welcome.  It is my pleasure to assist you and I will be happy to
address your additional questions below in order.

1)       Your understanding is correct. Our AVC License covers the end
product with AVC functionality as well as the AVC video content being
offered for Sale to End Users.  Therefore, the party offering such end
products/video concludes our AVC License and is responsible for paying
the applicable royalties.  In light of that, if your company will not
deliver AVC Video to End Users as you suggest, then no further royalties
would be payable under the AVC License.

2)       MPEG LA is currently discussing the AVC License with Canon and
we fully expect them to become an AVC Licensee in the near future.

3)       Please feel free to share our responses to your questions with
other users of AVC Products. We provide the same AVC License to all
users, so we always appreciate the opportunity to provide accurate
information regarding how our Licenses work.

Meanwhile, if I may be of any further assistance, just let me know.\

Best regards,

Ryan

Ryan M. Rodriguez
Licensing Associate
MPEG LA

Here, Ryan is confirming that what I understood was correct, namely, if H.264 video is converted to another format, it is no longer subject to licensing.  This was one of the major points of clarification I wanted to make.  He also confirms that I may share his communications “with other users of AVC Products”.  But I don’t actually use any AVC products myself…so, let’s just be optimistic and hope that means I can share it on the website, as well.  🙂

Date: Fri, 28 May 2010 09:53:00 -0400
From: Basil Mohamed Gohar
To: Ryan Rodriguez
Subject: Re: Question about licensing related to consumer video products

Ryan,

Thank you again for your clarifications.  I have thought some more about
your responses, and I have a few more questions.

Obviously, if we have recordings of AVC/H.264 video, in order to convert
said recordings to something else, we would need to decode the videos
for that purpose.  For example, there exists a free software
implementation of an H.264 decoder in the ffmpeg package, which is the
most common (or perhaps only!) case for AVC/H.264 video decoding on,
say, GNU/Linux operating systems.  Is any special license required in
order to decode H.264 video in order to convert it to another format?
This is a potential sticking point, as if one is required, we are left
with video we may not distribute commercially (without a further
license) and that we may not convert to another format (again, without a
further license).

Thank you again for taking the time to answer my questions.

Sincerely,

Basil Mohamed Gohar

I realized that, while converted video may no longer need to be covered under the AVC license, you need to decode the video with something that is.  I could see that this might be a problem, so I probed further with this message.

Subject: RE: Question about licensing related to consumer video products
Date: Mon, 31 May 2010 08:43:21 -0600
From: “Ryan Rodriguez”
To:

Hi, Basil.

Thank you for your message.  It is nice to hear from you again.

To your question, I would like to clarify that any product that includes
AVC/H.264 functionality needs the coverage provided by MPEG LA’s AVC
License, even those products which are distributed free-of-charge or
considered “open source”.

Further, our Licenses do not directly provide coverage for an end user.
Rather, the party offering the encoders/decoders to end users is
responsible for being licensed and paying the applicable royalties.
Unfortunately, the provider of FFMPEG AVC encoders/decoders has not
concluded the AVC License with MPEG LA or paid the applicable royalties.
As a result, ffmpeg is not licensed.

While MPEG LA is not in a position to provide any technical guidance or
legal advice, our only suggestion would be that you choose a product
from a licensed supplier (or insist that the supplier you use become
licensed).  In that regard, we maintain a list of Licensees in Good
Standing to our AVC License in the AVC portion of our website,
http://www.mpegla.com/main/programs/AVC/Pages/Licensees.aspx.

I hope this is helpful.  If I may be of any further assistance, just let
me know.

Best regards,

Ryan

Ryan M. Rodriguez
Licensing Associate

Ryan, cordial as always (I really appreciate that, to be honest), confirms my suspicions.  It is in this response that it becomes clear that no free software decoder for H.264 can exist, because the license cannot be transitive – that is, it cannot be distributed and still be covered by the license, even if someone’s own free software implementation of the decoder is licensed.

Date: Mon, 31 May 2010 13:45:04 -0400
From: Basil Mohamed Gohar
To: Ryan Rodriguez
Subject: Re: Question about licensing related to consumer video products

Ryan,

Thank you for your continued answering of my concerns.

After reading your description, I am quite confused as to how I can use
AVC/H.264 functionality, given that products that I purchase do not have
a provision for commercial usage and common software to convert
AVC/H.264 encoded video.

Furthermore, when I visit the provided link mentioning licensees in good
standing, I am put off by the following language at the bottom of the page:

> Licensees current in their obligations with respect to products
> reported and covered under their License; companies listed above may
> produce some or no products which are licensed under their respective
> agreement and, therefore, no conclusion may be drawn from this list
> that any particular products they manufacture are licensed. If you
> have questions about License coverage, please contact
> Licensing@mpegla.com.

As no conclusion may be drawn from this list that any particular
products they manufactured are licensed, how is that list supposed to
help me to avoid violating the license?

It seems to me that it is quite difficult for the common consumer to use
a product that utilizes technology covered by the AVC patent portfolio
as licensed by the MPEG-LA.  How am I, as a regular consumer, expected
to deal with AVC/H.264 functionality in my products when they are not
permitted for use outside of a narrow scope in their native format, and
to convert that format to another requires yet another license, one for
which, again, I cannot be sure a product has.

I hope you can see this problem that the licensing scheme has made for a
common consumer like myself.  I have no desire to violate someone’s
rights with regards to technology, yet coming into compliance with
licensing terms as has been explained to me seems to be almost
impossible or, at the very least, quite hard to determine with
certainty.  Is every consumer therefore required to e-mail
Licensing@mpegla.com in order to find if such-and-such use of said
technologies is permitted?

It seems that, for every issue that you clarify, another issue presents
itself that adds complication to the situation.  I hope that you can
provide some insight into this situation to make it easy for a common
consumer, such as myself, to use products that feature AVC/H.264
functionality, in ways that are not restricted.

Thank you again for your continued discourse with me.

Sincerely,

Basil Mohamed Gohar

My tone has changed in this e-mail, because while the advice in the previous e-mail seemed reasonable (at a cursory glance) in order to stay in compliance with the licensing terms for AVC video, in actuality, the legalese surrounding it makes it quite difficult or impossible to be completely free from worries.  The very same listing I was directed to to discover a licensed product to use for the purposes I described had a very ominous disclaimer claiming that the listing itself was no guarantee that a product was licensed.  I don’t even fault MPEG-LA at this point, this problem just demonstrates how ridiculous the presence of software patents has made what should be a very simple task, determining, “Am I allowed to do this?”.

Subject: Out of Office AutoReply: Question about licensing related to consumer video products
Date: Mon, 31 May 2010 11:45:08 -0600
From: “Ryan Rodriguez”
To: “Basil Mohamed Gohar”

Thank you for your message.

I will be out of the office until Tuesday, June 1 and will have limited
access to email.  Therefore, I will respond to all messages upon my
return.

Best regards,

Ryan M. Rodriguez
Licensing Associate
MPEG LA

Oops!  Hehe…I did saw I was going to post the full communications, and I meant it. 😉

Subject: RE: Question about licensing related to consumer video products
Date: Wed, 2 Jun 2010 16:02:03 -0600
From: “Ryan Rodriguez”
To: “Basil Mohamed Gohar”

Hi, Basil.

Thank you for your message. I appreciate your comments and your respect
for intellectual property rights, and I will be happy to address your
additional questions below.

To begin, I would like to clarify that the party offering the end
product is responsible for being licensed and paying the applicable
royalties (and not the recipient of the AVC Product, or the Consumer).
Included in the royalty paid by a Licensee for their products is the
limited right for a Consumer to use such products for their own
personal, non-commercial use.  However, when a party uses a Licensee’s
product for commercial purposes (for example, to deliver AVC encoded
video content to End Users for remuneration), then the party will need
to conclude its own License and pay the applicable royalties associated
with the video it distributes.

Therefore, if a Consumer simply use a Licensee’s product for their own
personal use, such use would not be subject to any additional royalties
under our Licenses.

To that end, I think it would be beneficial if we further discussed the
Licenses over a short phone call so that I can explain how our AVC
License would apply to you.  If you will please let me know your
availability for a call along with a phone number where you can be
reached, I will be happy to call you.  Alternatively, you may also reach
me at the phone number listed below.

I look forward to hearing from you again soon.

Best regards,

Ryan

Ryan M. Rodriguez
Licensing Associate

Ryan here has basically reiterated what he said in his first response to me, which is to say, the licensing is a requirement of the one delivering an end product.  A consumer that wishes to use their video in a commercial context is basically producing an end product or service, as far as MPEG-LA is concerned, and so they must have their own license.  I think, at this point, that Ryan has felt discussion through e-mail had reached the peak of benefit, so he wanted to continue over the phone.

Date: Thu, 03 Jun 2010 16:13:35 -0400
From: Basil Mohamed Gohar
To: Ryan Rodriguez
Subject: Re: Question about licensing related to consumer video products

Ryan,

My availability tends to be in the evenings, eastern time (i.e., EST).
Usually I’m free to talk around 9PM.  I realize that this might be late
for you or beyond your office hours, so if you have other times that
you’d be available, let me know, and I can see what I can do with that.

I understand that I have been asking quite a lot of questions and
sending e-mails back-and-forth can be a bit tedious.  However, I also
appreciate the fact that at least we have a “discussion” documented, and
I can easily refer to previous statements you or I have made in relation
to current ones.  Short of recording a call, such a reference would not
be available if you or I phoned the other.

One of the points driving my contacting MPEG-LA in the first place was
to get clear, unambiguous answers to questions that many, both within
the free software community and without, have been asking.  Most answers
circulated about are speculation based on casual readings of the
available licensing materials.  It is my hope that my documented
discussion with you will serve to fulfill the need for these answers in
a clear way, especially given the current prevalence of AVC/H.264 video
technology in many consumer products available today.

I responded to Ryan letting him know my availability for a phone call (which I’m almost certain would not work out with his schedule, unfortunately).  But I also expressed my point in contacting MPEG-LA – to provide documented information that I can share with others that will be affected by these licenses.

This e-mail was sent nearly two weeks ago, and I have not received a response back from Ryan, and I think I understand why.  There is likely little more information he can share with me along these lines of questioning that can be applied generally.

Libre Video initiated and then provided this communication with a licensing associate at the MPEG-LA so that clear answers to questions that have been asked, circulated, and speculated upon related to AVC/H.264 licensing could be answered clearly.  While there are still questions left unanswered, it is our hope that this information might lead discussions into a more fruitful direction – one based less on opinion, emotion, and FUD, and more on facts and reality.

Please share any comments you have, and if anyone is concerned with the information we have provided, please, by all means, let us know.  Although we have our views and mission, deceit and dishonesty are not amongst them.  We want to provide a beneficial service to the public, and shady practices do not fulfill that need in the long term.

We hope you have found this both informative and beneficial!

Thank you for your message.

I will be out of the office until Tuesday, June 1 and will have limited access to email.  Therefore, I will respond to all messages upon my return.  

Best regards, 

Ryan M. Rodriguez
Licensing Associate
MPEG LA