Is H.264 a legal minefield?

H.264 use isn’t all free all the time. MPEG-LA is the industry group that licenses the H.264 patent portfolio to the likes of software companies, optical-disc duplicators, Blu-ray player makers, and others who have need to use H.264. MPEG LA licenses a portfolio of more than 1,000 H.264-related patents on behalf of 26 companies that hold the patents.

Is H.264 a legal minefield for video pros? article tells that the licensing issues can be problematic to everyone working with video, because H.264 is very widely used. If you’re a digital-video professional, you need to understand those  a bit off-putting licensing terms. For some applications H.264 is free but for some applications you have to pay for it. For example the wedding videographer might need to pay 2 cents per disc they sell.

If the video is broadcast for free over the Internet, H.264 can be used now for free. Earlier this year, MPEG LA extended through 2015 a provision that means streaming H.264 video over the Net requires no royalty payments as long as anyone can see the video without paying.

The question is what happens after year 2015? If you think that this isn’t an issue that’s worth worrying about then study the history. HTML5 video and H.264 – what history tells us and why we’re standing with the web article mentions that the history of GIF shows us what happens when patented technologies are used on the web and what happens when network effects over-run the natural drive to royalty-free technologies at scale. At one time Unisys was asking some web site owners $5,000-$7,500 to able to use GIFs on their sites (good that those patents expired). This is still instructive.

MP3 pricing gives us a glimpse into the strategy around H.264 licensing could be in the future. We know that MP3 was licensed quite liberally early in its lifespan. They changed that after the network effects had already taken their toll. But as the cycle continued and MP3 became a requirement for playback the pricing changed to where we are today (royalty rate of about $1 per unit).


H.264 is currently liberally licensed and also has a license that changes from year to year, depending on market conditions. In worst case we’re looking at the same situation with H.264, except at a far larger scale. Something that’s free today might not be free tomorrow. Remember, this is still very early in H.264’s history so the licensing is very friendly. When everyone is relying the technology, it’s time to change pricing.

Google’s YouTube HTML5 version it only works with Safari and Chrome because they’re using H.264. Firefox supports the HTML5 video element, but only for free Ogg Theora video (that works
with all of the desktop browsers, either via native support or via a Java plugin). Mozilla and the folks pushing Theora are going to look like they’ve been crying wolf, but they have a point.

The web has always been based on the assumption of Royalty Free. In fact, participation in a working group at the W3C requires that any parties disclose and make available any essential claims on the technology covered by that working group. This leads to the obvious question: is the codec a fundamental web technology? The HTML5 working group argued and punted on the issue.

Maybe in the mean time we have almost 6 years to settle in and then MPEG-LA decides to start charging for Internet content. Hopefully this gives time people time to properly develop a more open codec that can compete with H.264 (that it technically excellent). If there are at that time good alternatives available, it is harder to start charging unreasonable amounts of money for the use of H.264.

There is an alliance of free video technology forming. The Open Video Alliance, which includes Mozilla, Kaltura, Miro, and Yale Law School, are joining forces to bring video to Wikipedia – Flash-free. Wikipedia is the most popular site in the world that posts video exclusively in open formats (specifically, Theora).


  1. Tomi says:

    Nero Files Antitrust Case Against MPEG-LA
    “And this is the organisation the pro-Apple/MPEG-LA/H264 lobby wants to hand over video on the web to. We already established the MPEG-LA is headed by a clear-cut patent troll, and it seems that if any of the stuff in Nero’s complaint is true, we’re dealing with a company much more damaging than a mere patent troll.”
    “The MPEG-LA constitutes a major threat to not only video on the web, but also the digital video industry as a whole. The MPEG-LA stifles innovation and places unnecessary costs upon consumers and the industry as a whole. This must end. Just as we don’t want Microsoft to abuse its monopoly position, we shouldn’t want the MPEG-LA to do so either.”

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  4. Tomi says:

    Here are some interesting related comments from

    >MPEG LA doesn’t forbid sharing of anything.

    Yes, it DOES.

    If you have enough “subscribers” if you do not charge per download (over 100,000) you MUST PAY A LICENSE FEE. And these fees are much steeper than Over-The-Air video, because the Internet is somehow special.

    If you make video LONGER THAN 12 MINUTES and distribute it you must pay 2% royalties *or* 2 cents per movie, whichever is greater. If your home movie becomes popular and is more than 12 minutes and you have not paid your two cents per download (even if you do not charge for it!) and they take notice of it, you will soon see the sky blacken with lawyers.

    Beyond participation fees for indirect revenue (revenue not directly from the user), MPEG LA also sets out amounts for title-by-title (rental or per-view). For videos less than 12 minutes long, there is no royalty; but for videos beyond 12 minutes in length, the amounts are decided at 2% of the retail price paid to the licensee or 2 cents per title. The retail price is specifically noted as a “first arms length” transaction, specifically between the end user and the seller of on-demand, pay-per-view, and electronic downloads to end users.

    If your video is longer than 12 minutes, MPEG-LA has its hooks in your content whether you like it or not. Even if it’s a home movie of your kids that is 13 minutes long, you owe MPEG-LA money if you “broadcast” it over the Internet. Even if you give it away, the minimum charge is 2 cents per download as described above. []

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  21. Tomi says:


    MPEG LA: H.264 Streaming Will Be Free Forever

    MPEG LA is announcing today that it will continue to offer a royalty-free license for the H.264 video codec for video sites that offer free video streams to consumers “during the entire life of this (l)icense.” In other words: Web sites like YouTube will be free to use H.264 for its streams without having to fear they’re eventually going to have to pay massive royalties to MPEG LA.
    -MPEG LA announced today that its AVC Patent Portfolio License will continue not to charge royalties for Internet Video that is free to end users (known as “Internet Broadcast AVC Video”) during the entire life of this License. MPEG LA previously announced it would not charge royalties for such video through December 31, 2015, and today’s announcement makes clear that royalties will continue not to be charged for such video beyond that time.

    Products and services other than Internet Broadcast AVC Video continue to be royalty-bearing.

    For more information about MPEG LA’s AVC License or to request a copy of the License, please visit

  22. Tomi says:

    ‘Free’ H.264 a Precursor To WebM Patent War?

    “The MPEG LA seem unwilling to explain why they have extended their ‘free’ H.264 streaming video policy now. This article unpacks the history of MPEG LA and then suggests the obvious — it’s all because of WebM — and the worrying — maybe it’s preparing the ground for opening a third front in the patent war against Google.”

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  27. Tomi Engdahl says:

    Next-gen video codec hits milestone

    The standards group hammering out the next generation of the MPEG media codec has forged a committee draft of the HEVC (High Efficiency Video Coding) standard in a regular meeting here this week. The spec also known informally as H.265 is expected to provide efficiency boosts in transmitting video for next generation systems and networks using it.

    In this week’s meeting one speaker said the boosts could be as high as 67 percent over H.264.

    The group aims to ratify a final standard in January 2013.

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  29. Tomi Engdahl says:

    Google: Please Don’t Kill Video on the Web

    Unfortunately, Motorola has refused to make its patents available at anything remotely close to a reasonable price. For a $1,000 laptop, Motorola is demanding that Microsoft pay a royalty of $22.50 for its 50 patents on the video standard, called H.264. As it turns out, there are at least 2,300 other patents needed to implement this standard. They are available from a group of 29 companies that came together to offer their H.264 patents to the industry on FRAND terms. Microsoft’s patent royalty to this group on that $1,000 laptop?

    Two cents.

    That’s right. Just 2 cents for use of more than 2,300 patents. (Windows qualifies for a nice volume discount, but no firm has to pay more than 20 cents per unit.) Motorola is demanding that Microsoft pay more than 1,000 times that for use of just 50 patents.

  30. Tomi Engdahl says:

    Mozilla grudgingly adopts H.264
    No other choice but to take on patent laden standard

    Mozilla is about to start supporting the H.264 video codec despite its better judgment.

    The organisation suggested that it had been pushed into adopting the standard, which it said is patent laden, and assured its users and developers that it would never charge for its software as a result.

    “Mozilla is on the cusp of changing our policy about our use of video codecs and making use of a format known as ‘H.264.’ We have tried to avoid this for a number of years, as H.264 is encumbered by patents,” wrote Mitchell Baker, chair of the Mozilla Foundation in a blog post.

    “The state of video on the Web today and in mobile devices in particular is pushing us to change our policy.”

    Baker said that the firm resisted the move because it wants to build products that people ‘love’, and added that using standards that are encumbered by patents does not support this.

    Mozilla could have avoided this move if it had support from other firms such as Google and Adobe, both of which made noises about supporting more open standards in the past.

    “What I do know for certain is this: H.264 is absolutely required right now to compete on mobile. I do not believe that we can reject H.264 content in Firefox on Android or in B2G and survive the shift to mobile. Losing a battle is a bitter experience.

  31. Tomi Engdahl says:

    Mozilla: Firefox needs H.264 support to survive shift to mobile

    Mozilla began an internal discussion last week about whether to implement support for H.264 and other patent-encumbered media formats by relying on hardware decoding and codecs supplied by the underlying operating system. Over the weekend, Mozilla’s Brendan Eich and Mitchell Baker wrote blog entries explaining why they support the plan.

    The initial proposal on the mailing list focused on Mozilla’s Boot2Gecko (B2G) mobile platform and the Android port of the Firefox Web browser. As the debate evolved, a path for enabling the same capability in Firefox on the desktop was also discussed. The issue is controversial because royalty-bearing technologies are antithetical to Mozilla’s vision of an inclusive, open Web.

    “H.264 is absolutely required right now to compete on mobile. I do not believe that we can reject H.264 content in Firefox on Android or in B2G and survive the shift to mobile,” he wrote. “Losing a battle is a bitter experience. I won’t sugar-coat this pill. But we must swallow it if we are to succeed in our mobile initiatives.”

    Video, Mobile, and the Open Web

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  33. Tomi Engdahl says:

    Patent abuse hurts the German economy: Microsoft has to relocate its European logistics center

    Germany’s leading news agency, dpa (Deutsche Presse-Agentur), reports that legal concerns have led Microsoft to relocate its European logistics center from Germany to the Netherlands.

    Microsoft is being sued in Germany by Motorola Mobility (a company Google is in the process of acquiring for $12.5 billion) over patents that are allegedly essential to the ubiquitous H.264 video codec standard. The Mannheim Regional Court will hand down a decision in two weeks (on April 17, to be precise) that could ban the sale of Windows 7 (and related technologies such as the Internet Explorer 7 and Windows Media Player) and the Xbox gaming console.

    Just for a license to its H.264-related patents, Motorola is demanding many billions of dollars per year from Microsoft.

    A country in which such patents can be easily abused to win injunctions is not an advisable place for a European distribution operation. It’s also an irresponsibly risky location for hosting websites that implement industry standards such as H.264.

    The problem is due to the combination of
    Germany’s statutory law
    the so-called bifurcated system,
    a disastrous decision on essential patents, named Orange-Book-Standard
    the way in which lower courts apply the Orange-Book-Standard

    Those and others factors have made Germany the new epicenter of the smartphone-related patent wars. Dozens of related lawsuits keep courts and lawyers busy, but on the bottom line, patent abuse kills jobs and impedes economic growth.

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  35. Tomi Engdahl says:

    US Judge Rules Against German Microsoft Injunction

    “In an unusual case, a U.S. judge has ruled that Motorola cannot enforce an injunction that would prevent Microsoft from selling Windows products in Germany, should a German court issue such an injunction next week.”

    “The suit centers primarily on Motorola licenses that have been declared essential to the H.264 video standard. The German injunction is expected on April 17.”

    U.S. judge orders Motorola not to enforce Microsoft injunction in Germany

    In an unusual case, a U.S. judge ruled on Wednesday that Motorola cannot enforce an injunction that would prevent Microsoft from selling Windows products in Germany, should a German court issue such an injunction next week.

    The suit centers primarily on Motorola licenses that have been declared essential to the H.264 video standard. The German injunction is expected on April 17.

    Microsoft argued that if the judge would allow that German injunction to go forward, which ultimately might compel Microsoft to negotiate a license according to German law, the U.S. court would lose its opportunity to make its own ruling on similar licensing issues. The U.S. court should be the one to rule on that issue, Microsoft argued, because Microsoft filed its lawsuit against Motorola over the terms of a licensing deal before Motorola filed its suit in Germany.

    Motorola has offered Microsoft a worldwide license that would require Microsoft to pay Motorola 2.25 percent of the end-user price of the product.

    Motorola argued strongly against the U.S. injunction. “You are being asked to interfere with a German court,” Jenner said. “It’s an intolerable intrusion on another country’s prerogative.”

    In the end, the judge seems to have decided that preserving his power to rule on this issue was too important.

    it seems the US court is ordering Motorola not to use the German legal system to block sales of Windows in Germany. So if Motorola were to do it anyway, I guess German customs would still enforce the injunction, but Motorola mangement in the US would risk punishment.

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  38. Tomi Engdahl says:

    MPEG drafts twice-as-efficient H.265 video standard, sees use in phones as soon as 2013

    All of that squabbling over H.264 may be rendered moot in the near future. The Motion Picture Experts Group (better known as MPEG) has just let us know that it was quietly drafting a new video standard while everyone was on summer vacation last month: H.265, also called High Efficiency Video Coding, promises to squeeze video sizes with double the efficiency of H.264.

    Imagine fast-loading HD streaming on 4G, or cable TV without all the excess compression, and you’ve got the idea.

    From press release:

    MPEG issues video compression draft

    The Moving Picture Experts Group (MPEG) has met to issue a draft international standard of a new video-compression format that is twice as efficient as current standards.

    The meeting, held in Stockholm July 16-20, gathered almost 450 people from 26 countries representing the telecoms, computer, TV and consumer electronics industries to approve and issue a draft standard for High Efficiency Video Coding (HEVC). This format will enable compression levels roughly twice as high as the current H.264/AVC standard.

    “Video accounts for the vast majority of all data sent over networks, and that proportion is increasing: by 2015, it is predicted to account for 90 percent of all network traffic,” Fröjdh says.

    Fröjdh believes that the HEVC format discussed by MPEG in Stockholm could be launched in commercial products as early as in 2013.

    “It will take time before it’s launched for a TV service, but adoption is much quicker in the mobile area, and we’ll probably see the first services for mobile use cases next year,” he says.

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  40. Tomi Engdahl says:

    Google called the MPEG-LA’s bluff, and won

    What many H.264 proponents do not understand, either wilfully or out of sheer ignorance, is that those H.264 licenses embedded in Windows, OS X, iOS, your ‘professional’ camera, and so on, do not cover commercial use. If you shoot a video with your camera in H.264, upload it to YouTube, and get some income from advertisements, you’re in violation of the H.264 license (and the MPEG-LA made it clear they had no qualms about going after individual users). The extension the MPEG-LA announced (under pressure from VP8 and WebM) changed nothing about that serious legal limitation.

  41. H.264 license issues « Tomi Engdahl’s ePanorama blog says:

    [...] is heavily patented. It seems that H.264 is a legal minefield where you need be careful where to walk. You have been warned. You can’t legally view and [...]

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