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.