Against Monopoly

defending the right to innovate

Monopoly corrupts. Absolute monopoly corrupts absolutely.

Copyright Notice: We don't think much of copyright, so you can do what you want with the content on this blog. Of course we are hungry for publicity, so we would be pleased if you avoided plagiarism and gave us credit for what we have written. We encourage you not to impose copyright restrictions on your "derivative" works, but we won't try to stop you. For the legally or statist minded, you can consider yourself subject to a Creative Commons Attribution License.


Are video codecs sexy?

Glenn Thorpe draws our attention to a good article about the role of patents in video codecs. The brief story: video codecs are used to compress the storage of videos. Camcorders use codecs to record, and video devices use codecs to playback. This is about the use of codecs to record. The big players - including most camcorder makers, Apple and Microsoft - record using codecs that are encumbered by patents. In particular the license allows the recording that is made with the codec to be used for "personal use and non-commercial use" only. I'm dubious of the legality of this - perhaps some of our patent lawyers can comment on this? But regardless the threat of a lawsuit it there: if you were to shoot a film using a camcorder and sold the film and made a lot of money (not that likely - but then again there is Witch Mountain) you can be pretty sure you would get sued.

The bottom line: the patent holders on parts of video compression technology are trying to use their patents to tell us what we can do with content we create using their recording devices.


Did you mean "Blair Witch Project", or have I just fallen into your cunning trap?
Its not patents, the whole "intellectual property" discussion is aimed at eliminating the concept of "sale" and allowing those who market products to restrict your use of that product. When a product is sold, the buyer should essentially have an unencumbered right to use that product as they see fit.
If you were to shoot a film using a camcorder and sold the film and made a lot of money (not that likely - but then again there is Witch Mountain) you can be pretty sure you would get sued.

Sued for what?

Patent infringement? But the doctrine of patent exhaustion says that if the manufacturer licensed all the patents needed for their device to be non-infringing, downstream purchasers do not need their own separate patent licenses.

Copyright infringement? But if I shoot a video, the law is pretty clear that I hold the copyright in that video and can do with it as I damned well please. As for any copyrighted software embodied in the camcorder, I'm not copying that or, really, doing much of anything with it.

Breach of contract? What contract? A contract requires consideration. After I lawfully purchase a camcorder I do not need anyone's permission to use it. As noted above, in particular I need no patent or copyright license to use the thing which could then be granted conditionally.

Indeed, I could easily shoot video without ever seeing the terms of the so-called "contract" if I went to a store, plunked down a few hundreds on the counter, told the sales rep where to stick their extended warranty, took the box, opened it, took out the camera, memory card, and batteries, put the memory card and batteries in the camera, turned it on, and then recorded for a bit. Presumably the "contract" is on fine print in the manual or something which I neglected to take out and read. :)

For that matter, what if I shot a video and uploaded it to some webhost and prominently stuck a CC attribution license on it? No commercial use by me there, but someone else might download and sell a copy. That third party certainly had no contract with the manufacturer, nor did they go anywhere near any patented (or copyrighted) aspects of the camcorder. Can they magically be sued? Can I, on the grounds that using a CC attribution rather than a CC noncommercial license breaches some alleged contract?

If I were rich, I'd buy a camcorder, record something, and sell the video right now just so I could kill this nonsense in a court of law and get a precedent set that everyone is free to use their devices as they see fit. If I can come up with a strong argument for a summary dismissal of such a lawsuit on my own and in about five minutes, think what I and a team of pricey lawyers could probably do to this nonsense given weeks and actual money to prepare our defense.

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