SFLC says Google's VP8 licence not in conflict with FOSS
The Software Freedom Law Center (SFLC) has said that the proposed cross-licence agreement for VP8-related patents that Google has published is not in conflict with open source or free software licences. It had previously been suggested by open source advocate Simon Phipps that this was not the case; Phipps cited the requirement for projects to enter a legal agreement which was not sub-licensable and that it placed restrictions on field of use of the agreement.
A blog post from the SFLC points out though that the VP8 cross-licence agreement is not a FOSS licence for software (the Google VP8 software is under a BSD licence) but a separate patent licence. As such, the patent licence does not come under the criteria used for determining whether a licence is open source or free software. Although the "field of use" restrictions and requirement to accept the licence terms would be unacceptable in a FOSS licence, say the SFLC, they do not apply to a free-standing patent licence.
The SFLC also notes that the licence does not restrict the ability of anyone who accepts it to copy, modify or redistribute free programs or add new capabilities to the software. "They would have the same rights as they would if the developers had never accepted the patent license: those granted by the software's FOSS license," says the SFLC.
Addressing the concern over each developer having to accept the licence, the SFLC points to paragraph 4 of the draft licence which states that upon signing the agreement, the licensee is released from any claims of past infringements. This, the SFLC says, "makes the license functionally identical to a covenant not to sue" and although there is a "valid concern" that the retroactive release clause could be removed, if it is present in the final version of the licence, Google and MPEG-LA could be effectively stopped from changing it.
The SFLC objects to and opposes software patents: "until software patents no longer threaten FOSS, we will look for every opportunity to preserve community development from their destructive effects," and it calls the VP8 cross-licence "such an opportunity". Phipps, in a comment on a Google+ thread, concurs with the SFLC's reading but adds that he still maintains "the Google license needs a great big sign over it saying 'we don't think you actually need this, it's just to stop OEMs and pro-patent lowlife saying there's a problem'."
Google is trying to establish WebM and VP8 as the default video codec for HTML5 and make it a standard of the ISO MPEG group. It has asserted in the past that the codec was unencumbered by third-party patents and suited for use as a standard over patent-encumbered standards such as H.264. The MPEG LA patent pool looked for patents that VP8 may have infringed and after it had made some indications about creating a patent pool, in the end, Google decided to enter into an agreement with the patent pool. The agreement included the ability for Google to sub-license the patent coverage to VP8 users.
The next hurdle for Google is Nokia, which has made a declaration to the IETF saying it has 64 patents that it believes VP8 infringes. The company adds that VP8 "offers no advantages over existing, widely deployed standards such as H.264 and infringes Nokia's intellectual property" and will not license any of those patents.