No, you can’t do that with H.264

A lot of commercial software comes with H.264 encoders and decoders, and some computers arrive with this software preinstalled. This leads a lot of people to believe that they can legally view and create H.264 videos for whatever purpose they like. Unfortunately for them, it ain’t so.

Maybe the best example comes from the Final Cut Pro license:

To the extent that the Apple Software contains AVC encoding and/or decoding functionality, commercial use of H.264/AVC requires additional licensing and the following provision applies: THE AVC FUNCTIONALITY IN THIS PRODUCT IS LICENSED HEREIN ONLY FOR THE PERSONAL AND NON-COMMERCIAL USE OF A CONSUMER TO (i) ENCODE VIDEO IN COMPLIANCE WITH THE AVC STANDARD (“AVC VIDEO”) AND/OR (ii) DECODE AVC VIDEO THAT WAS ENCODED BY A CONSUMER ENGAGED IN A PERSONAL AND NON-COMMERCIAL ACTIVITY AND/OR AVC VIDEO THAT WAS OBTAINED FROM A VIDEO PROVIDER LICENSED TO PROVIDE AVC VIDEO. INFORMATION REGARDING OTHER USES AND LICENSES MAY BE OBTAINED FROM MPEG LA L.L.C. SEE HTTP://WWW.MPEGLA.COM.

The text could hardly be clearer: you do not have a license for commercial use of H.264. Call it “Final Cut Pro Hobbyist”. Do you post videos on your website that has Google Adwords? Do you edit video on a consulting basis? Do you want to include a video in a package sent to your customers? Do your clients send you video clips as part of your business? Then you’re using the encoder or decoder for commercial purposes, in violation of the license.

Now, you might think “but I’m sticking with MPEG-4, or MPEG-2, so it’s not a problem for me”. No. It’s just as bad. Here’s the relevant section of the license:

13. MPEG-2 Notice. To the extent that the Apple Software contains MPEG-2 functionality, the following provision applies: ANY USE OF THIS PRODUCT OTHER THAN CONSUMER PERSONAL USE IN ANY MANNER THAT COMPLIES WITH THE MPEG-2 STANDARD FOR ENCODING VIDEO INFORMATION FOR PACKAGED MEDIA IS EXPRESSLY PROHIBITED WITHOUT A LICENSE UNDER APPLICABLE PATENTS IN THE MPEG-2 PATENT PORTFOLIO, WHICH LICENSE IS AVAILABLE FROM MPEG LA, L.L.C., 250 STEELE STREET, SUITE 300, DENVER, COLORADO 80206.
14. MPEG-4 Notice. This product is licensed under the MPEG-4 Systems Patent Portfolio License for encoding in compliance with the MPEG-4 Systems Standard, except that an additional license and payment of royalties are necessary for encoding in connection with (i) data stored or replicated in physical media which is paid for on a title by title basis and/or (ii) data which is paid for on a title by title basis and is transmitted to an end user for permanent storage and/or use. Such additional license may be obtained from MPEG LA, LLC. See http://www.mpegla.com for additional details. This product is licensed under the MPEG-4 Visual Patent Portfolio License for the personal and non-commercial use of a consumer for (i) encoding video in compliance with the MPEG-4 Visual Standard (“MPEG-4 Video”) and/or (ii) decoding MPEG-4 video that was encoded by a consumer engaged in a personal and non-commercial activity and/or was obtained from a video provider licensed by MPEG LA to provide MPEG-4 video. No license is granted or shall be implied for any other use. Additional information including that relating to promotional, internal and commercial uses and licensing may be obtained from MPEG LA, LLC.

Noticing a pattern? You have a license to use their software, provided you don’t make any money, your friends are also all correctly licensed, and you only produce content that complies with the MPEG standard. Using video for a commercial purpose? Producing video that isn’t within MPEG’s parameters? Have friends who use unlicensed encoders like x264, ffmpeg, or xvid? Too bad.

This last thing is actually a particularly interesting point. If you encode a video using one of these (open-source) unlicensed encoders, you’re practicing patents without a license, and you can be sued. But hey, maybe you’re just a scofflaw. After all, it’s not like you’re making trouble for anyone else, right? Wrong. If you send a video to a friend who uses a licensed decoder, and they watch it, you’ve caused them to violate their own software license, so they can be sued too.

Oh, and in case you thought this was specific to Apple, here’s the matching piece from the Windows 7 Ultimate License:

18. NOTICE ABOUT THE H.264/AVC VISUAL STANDARD, THE VC-1 VIDEO STANDARD, THE MPEG-4 VISUAL STANDARD AND THE MPEG-2 VIDEO STANDARD. This software includes H.264/AVC, VC-1, MPEG-4 Part 2, and MPEG-2 visual compression technology. MPEG LA, L.L.C. requires this notice:
THIS PRODUCT IS LICENSED UNDER THE AVC, THE VC-1, THE MPEG-4 PART 2 VISUAL, AND THE MPEG-2 VIDEO PATENT PORTFOLIO LICENSES FOR THE PERSONAL AND NON-COMMERCIAL USE OF A CONSUMER TO (i) ENCODE VIDEO IN COMPLIANCE WITH THE ABOVE STANDARDS (“VIDEO STANDARDS”) AND/OR (ii) DECODE AVC, VC-1, MPEG-4 PART 2 AND MPEG-2 VIDEO THAT WAS ENCODED BY A CONSUMER ENGAGED IN A PERSONAL AND NON-COMMERCIAL ACTIVITY OR WAS OBTAINED FROM A VIDEO PROVIDER LICENSED TO PROVIDE SUCH VIDEO. NONE OF THE LICENSES EXTEND TO ANY OTHER PRODUCT REGARDLESS OF WHETHER SUCH PRODUCT IS INCLUDED WITH THIS PRODUCT IN A SINGLE ARTICLE. NO LICENSE IS GRANTED OR SHALL BE IMPLIED FOR ANY OTHER USE. ADDITIONAL INFORMATION MAY BE OBTAINED FROM MPEG LA, L.L.C. SEE WWW.MPEGLA.COM.

Doesn’t seem so Ultimate to me.

My advice: use a codec that doesn’t need a license:

Q. What is the license for Theora?
Theora (and all associated technologies released by the Xiph.org Foundation) is released to the public via a BSD-style license. It is completely free for commercial or noncommercial use. That means that commercial developers may independently write Theora software which is compatible with the specification for no charge and without restrictions of any kind.

84 thoughts on “No, you can’t do that with H.264”

  1. On the plus side, H.264 actually works properly. And I’m more than happy to pay for anything that works properly.

  2. And without purchasing a software like the ones listed above you’re not even allowed to use h264 non-commercially/private:
    “In response to your specific question, under the Licenses royalties are paid on all MPEG-4 Visual/AVC products of like functionality, and the Licenses do not make any distinction for products offered for free (whether open source or otherwise),”

    http://www.osnews.com/story/22812/MPEG-LA_Further_Solidifies_Theora_as_the_Only_Video_Tag_Choice

  3. Franz: This argument is equivalent to jumping off an airplane without a parachute because it may not open anyway.

    Xiph has been set up to provide patent free codecs. If there’s a patent claim, they will work to work around it (as has been done before).

    The MPEG-LA on the other hand has a clear business plan behind its codec (and remeber h264 is only a part of what you’d bee needing to license as there’s also audio and the whole mpeg container).

  4. Franz,

    Bens is effectively saying “standing on these tracks might get you hit by a train” and your counter is effectively “Yes, but a train migh fall from the sky and hit you while you are off the tracks”.

    It is true that some crazy organization might try to sue you for using decade old Ogg technology which has been shipped by billion dollar companies like Microsoft, based on some patents no one was expecting. Similarly, they might try to sue you for the newer H.264 technology based on patents no one was expecting.

    You could debate the relative size of the small risks here, Ogg has been shipped by a few fewer billion dollar companies but it has also been around longer…

    But, you don’t have to speculate about undiscovered patents to know which format is more dangerous: Everyone knows and admits that H.264 is encumbered, so it has the greater risk of known violation plus the smaller risk of surprise patents. Ogg only has the smaller risk. No one can reasonably claim that the willful infringement of the widely publicized H.264 patents isn’t a bigger risk.

  5. Why do people keep claiming Ogg/Theora is patent-encumbered? The whole point is that it’s not.

  6. No mobile device maker will use Theora until there’s a decoder in hardware. No large website will use Theora until there’s a user market. No silicon company will make a hardware decoder until there’s a device market. Quite the chicken/egg problem.

    If open source is so awe-inspiring and magical, where’s the hardware implementation of a Theora decoder? Put your money where your mouth is and make one.

  7. So instead of furthering the web by finally getting rid of Flash (which also uses h264) and supporting HTML5 in the process you propose that everybody waits for Theora to be implemented by Apple/Google/M$/EveryCameraManufacturerOnThePlanet so you can actually produce any Theora videos that are then less quality.
    Really are you fucking serious? Its two different issues and since 99% of all videos on the web are already h264 we might just go with it for now and then have this debate again once flash has stopped poisoning the web with not only patented tech but also proprietary tech that can not be licensed at all.
    Its TWO transitions – one from Flash video to HTML5 video – that transition is about to happen – if Mozilla – now the second biggest browser – is not stopping that in the process with this silly discussion. The other transition can and will happen once there is a free open patent free codec available that can be incorporated into commercial software (so there can be a backend) that rivals and – hopefully – surpasses the quality of H264 – that is NOT the case yet and will not be the case for another 3-4 years – but go ahead just push this issue and you have adobe controlling the web by then – I am sure that is a MUCH better proposition then a company thats not even a company and that actually consists of companies trying to advance multimedia on the web (not that I like MPEGLA much but its WAY better then adobe)

    Also what is left out of this debate is MP3 – yes the patent runs out soon – but at the moment at the start the same things applied to MPEG1 which MP3 is part of. Has anybody been sued because the published an MP3 on the web yet? Is mozilla supporting MP3 in the tag?

    Also this whole discussion about H264 license is already over – it was a discussion when it was introduced – it seems most advocats of Theora are younger then that – it was agreed that MPEGLA will not raise fees for commercially published content – and yes they said that “will run out at one point and then reconsidered” that aint mean it runs out and then they start suing everybody and all above Google which has people sitting on the board of MPEGLA as well as Apple.

    Again I am not saying H264 is and should be the end of it all – I am saying its not the right time to have this discussion now with the only alternative a codec that is just not there yet – no matter how everybody wants it to be there – reality looks different on all ends (market thats already there (similar to MP3), production methods, quality).

    Lets take this opportunity to get rid of flash.

  8. From what I know mpeg1 and mp2 are patent expired… Maybe would be worthy add them to the mix given that they are hardware/firmware friendly while theora and vorbis are quite more annoying in that side…

  9. @Franz: of course, *no* non-trivial, recent software, is safe from software patents. Ogg and Theora codecs are among them. However, they are here for quite some time, and no one has been sued yet. That drastically diminish the chances that anyone will ever be.

    @retrontokioto: I agree that patents (in general) are an incredibly wasteful legalese. However, ignoring them is unreasonable, even for people who live in countries which don’t enforce them, because it would mean excluding many potential users (or encouraging them to engage in unlawful behaviour).

  10. They come because it’s true. If Theora advocates were to improve the codec it wouldn’t be a problem and a lot more people would agree with you.

  11. Given how many people obviously violate these licenses, and the lack of legal action against said people, would this all really hold up in court? I understood that every effort must be made to protect a patent, and a patent-holder risks losing said patent if not constantly and thoroughly defended.

  12. “If you encode a video using one of these (open-source) unlicensed encoders, you’re practicing patents without a license, and you can be sued.”

    a) “Practicing patents without a license?” Huh?
    b) Where in that block of license agreement are you getting this from? It looks like the preceding bit of the license only applies to encoding/decoding MPEG-2 and MPEG-4.

  13. Great writeup. Working with packaging chromium, the folks at Google don’t seem to understand why embedding a forked copy ffmpeg for H264 support into the codebase is a bad idea, here’s hoping they see this!

  14. Yeah, but they never enforce it, because the sheer scale is too high, and would mean that any prosecution is selective enforcement.

  15. Great write-up! People need to get educated about all of this stuff. The H264 stuff out there now is just like the crack dealer giving away free samples to get people addicted and then charging major $$ once they’ve got their victims, er, consumers locked in. Avoid H264 like the plague.

    @Franz Hilberger: perhaps, but the burden of proof is on those claiming patent infringement. Until someone specifically shows me where Ogg and/or Theora infringe a *LEGITIMATE* patent I’m not buying the “Ogg’s not safe” argument.

    -MC

  16. @Franz Hilberger

    Nothing is save. But, well:

    If you use Theora it is possible that there is an unknown patent holder who will sue you some day.

    If you use H.264 it is possible that MPEG sues you *and* it is possible that there is an unknown patent holder who will sue you some day.

  17. Theora is free but On2 make a promise to not change the license. promises are made to be broken.
    Dirac is a real Open-Source video format.

  18. Then we just have to wait for the people who link to the flawed comparison between H.264 and Theora published by the xiph folks like it’s the last word in quality.

    But on a serious note, Theora is terrible. If you want to champion an open-source free codec, champion Dirac instead. At least its comparable to H.264 in quality at a given bitrate.

  19. its generally assumed by knowlegeable computer folks that the OGG Theora codecs infringe on various video and audio encoding patents.

  20. The only problem with this is that it’s not clear that the first person to use theora for widespread commercial use will not immediately be attacked by patent trolls. Companies are already claiming they have patents that cover Theora. The first commercial entity of sufficient repute to stick its head out of the water here is going to get it bitten off.

    The reason big businesses favor H.264 is because the legal stuff, while expensive, is unambiguous. A lawsuit will almost surely cost a lot more than some H.264 licensing.

  21. Thanks for this article. I was wondering what exactly were the restrictions of these codecs, and this helped a lot.

    I hope many people read this!

  22. “Franz Hilberger says:
    2010/02/03 at 6:23 am
    Ogg is not safe either because of software patents.”

    What? Is Theora is ogg?

  23. Oh, come on. Do you really think the owners of those patents are after you sending a video to your friend? IF – and they haven’t gone after anyone, yet – they go after anyone, they’ll start with large corporations with money. I’d start with all the huge video sites, not Joe Schmo and his pal.

    It’s a legitimate concern if you put lots of content on the web and want to make sure your a$$ is covered, but they haven’t gone all RIAA on Grandma, yet.

  24. @Franz: Unfortunately, nothing is truly safe from patents. Even H.264 might be infringing on some earlier patent, but the troll simply hasn’t surfaced yet.

    Patent trolls can wait under all manner of bridges waiting for a technology to pop up independently and tax those who actually implemented. The patent system itself is so flawed that many patents for obvious and/or non-novel technologies (Amazon’s one-click purchasing patent, for example) can be granted by an overburdened and perhaps under-knowledgeable patent clerk.

    Furthermore, the patent system relies on the applicant to honestly and truthfully report all prior art, and places the burden of proof on the “infringing party”, even if the patent was questionable to start with. It’s a similar quagmire as early spam, where all the benefit is to the spammer and all the risk and expense is transferred to the receiver.

    @retrontokioto : I sure understand your frustration, but you ignore patents at your own peril. Patents are a useful tool for inventors, and while the system is flawed, it is a valid method to inspire innovation. Furthermore, to ignore patents may truly disenfranchise small inventors, and put yourself, your company, and (as noted) your friends and family at risk legal and financial risk.

  25. Great, ask the guy that did Avatar why he did not use theora for his (rather commercial) movie, I guess that he was bloody pissed that he had to pay money for using his tools.

  26. I use H.264 for all my projects and it is what I recommend to all my professional colleagues. H.264 is used by all the leading edge media technology companies, and is patented because there is no other way to encourage the creation of high quality cutting edge software. You can take your chances with crappy “open sores” software, but I’ll stick to what the pros use, thanks.

  27. Patrick Gibson: You are thinking of trademarks. In trademark law the onus is on the holder to pursue violations or else risk losing control over the mark.

    In patents there is no such thing. You can wait around under a bridge for years while everyone violates your patent, and then just pounce on the one violator with deep pockets who eventually comes along.

  28. @uninspired: Yeah, the trolls will start with underfunded individuals and small companies. It’s easier to set legal prescient with those folks than with huge companies with deep pockets. Expect to see the trolls go after the big companies only after they have a few published wins under their belt to quote in briefs.

  29. @uninspired: Of course MPEG won’t sue every H264 user, but come on, the topic of the discussion is the web next gen video standard, not encoding your last DVDRIP for your friends!

  30. Don’t listen to the stupid trolls like patrick claiming that Theora is patent-encumbered. That is not true.

    The Theora codec does contain patented material, but the owner of the patents have granted complete freedom of use.

    From Wikipedia:

    On June 2002 On2 donated VP3 to the Xiph.Org Foundation under a BSD-like open source license.[28][29][30] On2 also made an irrevocable, royalty-free license grant for any patent claims it might have over the software and any derivatives[2], allowing anyone to use any VP3-derived codec for any purpose.[9][31] In August 2002, On2 entered into an agreement with the Xiph.Org Foundation to make VP3 the basis of a new, free video codec, called Theora.[32] On2 declared Theora to be the successor in VP3′s lineage.

    [2] cites http://theora.org/doc/Theora.pdf

  31. Can anyone tell me, if I release a free version of a game for iPhone, and it has video in it – whether I can do that? (I guess the video is H.264, unless I’m mistaken)

  32. @James, re. “selective enforcement” … tell that to the RIAA. Hasn’t stopped them from suing dozens of the millions of people who have downloaded music illegally.

  33. Video on Wikipedia uses Ogg Theora, and Wikipedia is one of the web’s top-visited sites. As more video gets put into Wikipedia (or more correctly, into Wikimedia Commons), more web browsers will find reason to support Ogg Theora (as Firefox already does).

  34. @Franz Hilberger “Ogg is not safe either because of software patents” – citation needed, thanks. Apple and Nokia claimed the same and were unable to back it up in any manner whatsoever. And never mind that Nokia had failed to reveal at the time that they were a beneficiary of the H.264 patent pool.

  35. @Timothy Fries “Then we just have to wait for the people who link to the flawed comparison between H.264 and Theora published by the xiph folks like it’s the last word in quality.”

    Again – cite how and why it’s flawed. Your claim is strangely lacking in substance.

    H.264 at its theoretical best beats Ogg Theora at its theoretical best. In practice, current Theora encoders equal current H.264 encoders in quality.

  36. Eventually the US will have to get rid of software patents. They simply cause more pain than benefit, even for the largest players. For companies like microsoft they’re a cost of doing business, not an asset.

    I suspect that everyone will be using H264, and that some sort of deal will be worked out whereby it can be used without excessive cost. I am glad I’m not doing anything with video though. All of video is a legal nightmare.

  37. Apple, Nokia, and many other companies own quite a few patents in the “pool” for the MPEG1, MPEG2, and MPEG4 standards. The patents for MPEG1 and MPEG2 have not fully expired either.

    For example, the mp3 audio format is part of the MPEG-1 standard. MP3 is heavily patented and has plenty of active ones left.

    For MPEG-2, it is quite obvious there are plenty of patents left on it, otherwise the codecs would have been included in Linux distributions. Even so, the MPEG-LA has a list of all the currently available patents for each format technology. MPEG-2 has plenty of them left.

    MPEG-4 (AVC/H.264,etc.) is obviously heavily patented. So is VC-1 (MS-WMV9).

    Xiph and On2 have conducted patent sweeps to make sure there aren’t any patents left out there that people could get sued for. Additionally, On2 made a legal agreement to release a RAND royalty-free patent license for its technology in regards to the Ogg formats and codecs.

    And Xiph is improving the Theora and Vorbis codecs. Already Vorbis is superior to many existing audio codecs, and Theora is superior to Sorensen and H.263. Theora is catching up in terms of quality to H.264, so it is a matter of time before it surpasses it.

    And let’s not forget that VC-2 is supposed to be based on the wavelet codec, Dirac, which came from the BBC….

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