Sep 5, 2012

Microsoft challenges Google to offer patent indemnification

Skirmishes between Microsoft and Google became more intense this week, first with Google asking Microsoft to stop copying its search results, then with Microsoft ridiculing Google's naivete about patent risks.

Not that any of this is really unprecedented. Google and Microsoft have been locking horns quite frequently of late. Recall Google's ongoing lawsuit against the Department of the Interior for an IT contract that favored Microsoft, which followed Google's complaints about another supposedly rigged contract from the State of California.
But a lengthy blog post published Wednesday by Dean Hachamovitch, Microsoft's corporate vice president in charge of Internet Explorer, lays bare a rift that threatens Web browser interoperability. This is more than the usual contract bloodsport; it's about control, of the Web standards process and of the direction of Web innovation.

Software makers using the H.264 video codec, based on patents owned by Apple and Microsoft among others, may be subject to licensing fees. Supporters of open source software typically won't accept such licensing terms. So Google recently decided to cease supporting the H.264 video codec in Chrome. Instead, it will only support WebM and Theora, two open source video codecs.

Chrome users who wish to access video encoded with a different video codec, like H.264, will have to do so using a browser plug-in or extension, which is the way that Adobe Flash content is accessed.

So Microsoft has decided to offer just such an extension, as it has done for Firefox users -- Mozilla, like Google, doesn't want to support H.264. Claudio Caldato, principal program manager for Microsoft's interoperability strategy team, on Wednesday announced a Google Chrome extension to enable Windows 7 users of Chrome to play H.264 video.

But Microsoft is doing so under protest. Hachamovitch suggests that supporting WebM just because it's open is naive and won't save anyone from potential patent claims.

"Offers of 'free' or 'royalty-free' source code and strong assertions that the technology is 'not patent encumbered' don't help when a patent holder files a complaint that your video, your site, or your product infringes on her intellectual property," he wrote." The only true arbiter of infringement, once it's asserted, is a court of law. Asserting openness is not a legal defense."

This is a longstanding complaint raised about open source software, one open source supporters typically characterize as "FUD" -- an effort to create fear, uncertainty, and doubt in order to steer companies away from open source code. It's also not necessarily untrue, as Oracle's lawsuit against Google's alleged misuse of Java in Android demonstrates. The unfortunate reality about patent law is that the potential payout for filing and winning a patent lawsuit is significantly higher than the cost of filing and losing one. For companies with deep pockets and strong patent portfolios, patent litigation is often a gamble at favorable odds.

Given that reality, Hachamovitch insists that Microsoft is willing to work toward a Web standard for video if Google is willing to pay any legal fees and judgements arising from patent claims.

"...Microsoft is willing to commit that we will never assert any patents on VP8 if Google will make a commitment to indemnify us and all other developers and customers who use VP8 in the future," he wrote.

Google did not immediately respond to a request for comment.