One of the things that has been playing over in the collective mind of Faultline lately is just what will happen to the intellectual property rights of PlayReady, the new Microsoft multi-domain Digital Rights Management technology. Will those rights belong to Microsoft, or will they be shared with rivals and partners.
We have been told, mostly by Intertrust, that it has already filed domain aware DRM patents ‘ a way of allowing more than one encryption key to be created and managed for multiple copies of a single piece of content, so that content can be consumed on more than one device, copied to another device that has been registered as ‘tethered’ to the original device, and which is shown to be local to it. This technique is used to some effect in Apple’s Fairplay, but is supposed to be better on PlayReady, to the point where it is invisible to the end user, allowing copies to multiple PCs in a home and to Consumer Electronics devices, but where copies sent over the internet, simply fail.
Intertrust’s Marlin is supposed to already embody these principles, in an open source, patent licensable version of DRM.
And given that PlayReady is not yet finished, and that partners such as Nokia are openly saying that they are helping with the design, it stands to reason that at least Nokia and Intertrust will each claim they have a part ownership in the intellectual property behind such moves, although of course it depends exactly how much help Nokia has given and on what parts of the software, and it depends on how Microsoft has gone about implementing its domain sharing system internally.
But that’s one of the real bugbears in all similar intellectual property disputes, unless you happen to have a long hard look at source code, how does anybody know just how a particular system has implemented an idea internally.
This issue first came to light when Microsoft began the standards process for its VC1 codec, opting to go through the Society of Motion Picture and Television Engineers (SMPTE) instead of the usual channels, but employed the auspices of MPEG LA for the license and patent pool.
Effectively Microsoft was mugged by the attempt, because in so doing it had to reveal how its codec technology worked, and offer a license, and in going to the respected MPEG LA as a patent pool agent, it exposed its technology to all the know how that went into licensing the MPEG 2 and MPEG 4 Level 10 AVC/H.264 codec that has stolen the market.
Between all the companies involved they ended up speaking for 125 separate patents listed in the license, and just two of these are allocated to Microsoft. Every other supplier of essential technology including Daewoo, France Telecom soci’t’ anonyme (which presumably includes patents from close associates of France Telecom also) Fujitsu, Philips, LG, Matsushita, Mitsubishi, NTT Pantech Curitel, Samsung, Sharp, Sony, Telenor, Toshiba JVC, have more patents at stake that Microsoft.
Will this in fact be the same for DRM? Well probably not, because this was tried once before, when OMA called for essential technology behind its DRM version 2.0, which ended in grim failure with 5 companies which had never been consulted in the creation of the standard, claiming essential patents in it (in fact they were specifically avoided). So what was always supposed to be virtually royalty free became an expensive license which has not had a single subscriber ‘ in effect the patent pool negotiations have destroyed the technology and given a way for PlayReady to make a bid for glory.
Like as not Microsoft will just continue to sell PlayReady without any reference to intellectual property and not go to the trouble of seeking a patent pooling arrangement. It will be pretty hard to prove that the system works in the same way as any other system, and Nokia, if it really offers Microsoft any genuine help, can be rewarded with a quiet licensing deal that is never discussed publicly.
But having gone to the trouble of seeking a patent pool for VC1, has Microsoft already lost the fight for any intellectual property behind its new Silverlight video format? It is so far based fairly and squarely on the VC-1 codec, which, as we have seen, was built by standing on the shoulders of other giants.
In actual fact Silverlight is more about a cross-browser, cross-platform plug-in that is on the receiving end of Windows Media formats and MP3 files across networks, using Microsoft’s .NET. It just so happens that in its first implementation it uses VC1 for music and MP3 for audio.
We already know about the problem this has given Microsoft over MP3 usage, with Alcatel Lucent suing Microsoft, initially successfully for $1.5 billion, in a judgment that has since been set aside and which Alcatel Lucent is appealing. Everybody knows that Lucent did not invent, or get close to inventing MP3, but it took until November this year before we actually knew what had happened, when the MPEG LA took a very poorly publicized legal actions against Alcatel Lucent, for breaching an agreement to include all of its intellectual property around MP3 in a patent pool that MPEG LA controlled.
MP3 was the audio component to MPEG 1 originally standardized, after almost a decade of work, in 1991. There is a good chance that some of the patents in it are already almost exhausted. It was re-iterated in a slightly different form in the 1994 MPEG 2 standard, which is what Alcatel signed up to.
MPEG LA is suing for breach of contractual obligations as a Licensor in MPEG LA’s MPEG-2 patent pool licensing program and the case has been brought in the US. Part of the agreement to sign up to a license with MPEG LA is that Alcatel cannot take any action to subvert its commitment to the license.
What happened was that as Alcatel and Lucent were merged, a separate Trust was set up to hold the patents that Alcatel was required to place into the MPEG-2 License, rather than make them available to MPEG LA.
Alcatel of course claimed it was not a signatory and so was not obliged to share its patents. But are we sure that the patents that it used to sue Microsoft came from Lucent, not from Alcatel? And after Microsoft, Alcatel was going to go after every single one of the MPEG-2 patent pool Licensees for a juicy royalty, despite signing an agreement with them all.
What we think is going on in all this is that Microsoft has wearied of the bid to own the intellectual property, and simply wants to own the software platform that is mostly commonly associated with a technology. So even if Silverlight is a copy of Adobe Flash, and even if it ends up paying a license on that to Adobe, and a license on MP3 to the MPEG LA patent pool, Microsoft wants control of its own software platform that will run on ANY platform and play audio and video.
Microsoft may just as well offer MPEG 4 Part 10 AVC (H.264) the most commonly used video format these days, since its VC1 format floundered for two years in that licensing committee. And if it was going to do that, what about MPEG 4 Advanced Simple Profile ‘ which we understand to be the same platform which DivX uses, and which has used to encode half of the world’s pirated content. While Microsoft’s at it, it might as well support the VP6 and VP7 codecs from On2 Technologies.
In fact Microsoft has already added the DivX style format this week to its Xbox 360 (see Worth Noting in this issue).
Because in Silverlight what Microsoft is after really is the arrangement of what happens in the runtime environment, and how streams are called across the internet. In fact it just wants a highly efficient software implementation that establishes Microsoft software on handsets, including Linux and Symbian based handsets, and full scale Linux laptops and servers and Apple Macs.
So there we have it. The whole entertainment stack, run time environment, codec, DRM, not invented by Microsoft, but invented by all and sundry over the past 20 years. But with Nokia’s help (by using it for is Ovi platform) it could be brought together into a delivery platform, made up of multiple layers of software that run on both Microsoft and non-Microsoft servers and clients.
In that way Microsoft development power survives, but without it becoming a stagnant monopoly, that overruns every platform in sight. We like it.