[Foundation-l] MP3 and OGG

[Robert Scott Horning]

Lee Daniel Crocker wrote:

>On Sat, 2005-06-04 at 20:03 +0200, Jimmy Wales wrote:
>
>  
>
>>I am willing to defer on this issue to Debian.  Can anyone report on
>>whether or not MP3s can be created and played with software that Debian
>>has in their 'free' category?
>>    
>>
>
>Fraunhofer, the owners of the mp3 patents, claim $0.75 royalties per
>decoder sold; they explicitly say that this fee is waived for "free
>software distributed over the Internet", but that does mean that Linux
>distributions on CD or sold by other means cannot include MP3 decoders
>without triggering the fee, but they can point users to where free
>decoders can be downloaded.
>
>Whether their claim has any legal validity is another issue entirely.
>
>  
>
While I would grant that many software patent issues are dubious at best 
(notably the LZW GIF issue from back elsewhen), this one is quite 
legitamate, and well known by at least those who are quite familiar with 
the development of multimedia software.  The compression algorithm was 
specifically designed by Fraunhofer for the MPEG  Audio (ISO/IEC 
11172-2) specification, and credit for that effort is published in the 
appendex of that specification, with a specific warning that it needed 
to be contacted in order to resolve any patent issues.  And the 
algorithm employed by Fraunhofer really is unique enough that I don't 
have as much of a problem with them claiming patent status as opposed to 
the incredibly silly patents that have been issues (like the one-click 
patent by Amazon.com).  Their "legal" website is:

http://www.mp3licensing.com/royalty/index.html

I've been involved with multimedia data formats for some time, and I 
would have to say that the "non-free" status of MP3s is indeed a huge 
issue for an organization like the Wikimedia Foundation.  This is not 
something to be lightly swept under the rug.  While you can have "free 
software" that implements the specification, the legal issues are hardly 
clear.  Another website I would strongly recommend to look at is:

http://www.mpegla.com/

This is the "licensing authority" for most MPEG products, and will give 
you at least somewhat of a legal whitewash if you license stuff through 
them.  It doesn't, however, cover MP3s, which is why you need to license 
directly through Fraunhofer.  By legal whitewash, I mean that people 
known to the MPEG committee to have patent issues with the standards 
have been contacted and negotiated with to set the fees.  They still 
don't guarentee that you will be safe from patent violation, but you 
have been covered from the major players who open insist on royalties 
for those patents that are covered by the specs.

Ugly, and it does get worse.

Where it comes down to what the Wikimedia Foundation is concerned, there 
would be interest in selling copies of Wikimedia content (on CDs, in 
books, etc.) even if it is just as a fundraiser to pay for the server 
farm.  Fraunhofer is insisting on a royalty for even distributing MP3s, 
so some of the money raised from the sale of a Wikipedia CD (for 
example), would have to be sent to the MP3 licensing authority.  I don't 
know the legality of this in Europe, but I wouldn't avoid paying this 
fee there either without a lawyer on retainer to deal with potential 
lawsuits.

The "free" aspect is more a recognition that one of the major reasons 
why MP3s are popular is because they are widely traded over the 
internet, and they don't want to hassle all of the free MP3 download 
sites, unlike the RIAA.  This still violates the terms of the GPL, 
notably clause seven:

"7. If, as a consequence of a court judgment or allegation of patent 
infringement or for any other reason (not limited to patent issues), 
conditions are imposed on you (whether by court order, agreement or 
otherwise) that contradict the conditions of this License, they do not 
excuse you from the conditions of this License. If you cannot distribute 
so as to satisfy simultaneously your obligations under this License and 
any other pertinent obligations, then as a consequence you may not 
distribute the Program at all."

While this clause is not in the GFDL (I am surprised here on this 
point), I would expect a similar legal argument if it were brought up.

While I am not a lawyer, I do have experience in this issue from a 
professional standpoint, and it is my strong recommendation that the 
Wikimedia Foundation avoid MP3s on any of the Wikimedia sites, as it 
violates at least in nature free media, and could produce headaches for 
the Foundation that would be better left alone.  When the Fraunhofer 
patent expires, that may be another issue, and I do expect that the 
Wikipedia will outlive this patent, but that is several years in the future.

-- 
Robert Scott Horning
218 Sunstone Circle
Logan, UT 84321
(435) 753-3330
robert_horning at netzero.net