I can’t really offer you legal advice regarding your situation. I explained the above points based on what the representative from MPEG-LA told me via e-mail, but you’re best off seeking advice from someone more familiar with licensing law than myself.

I will say that patent law gives the owner of a patent full rights regarding to whom they may or may not license their invention (I’m being generous with the term invention here). Therefore, that means that they can choose not to give a license to someone for whatever reason they like, or they can alter the terms of licensing at will. It is a common practice of organizations that profit from patents to seek to get the patented technology utilized widely first, and then target users with fat wallets one-by-one, relying on that fact that it would be more costly for the user to litigate and/or replace the technology than it would be to settle and/or license the technology on the terms of the owner of the patent.

I do not claim this will be done by MPEG-LA. But it would not be a surprise if they did, looking into the history of how patents have been used in the past.

Thanks for commenting and sharing your own experience with the MPEG-LA and its licensing terms with us. I did not realize it at first that even the possible solution I had proposed, which was already cumbersome, was not, in fact, possible. You are correct – it appears licensing for commercial purposes is not extended to an end-user of the H.264 technology except through an end product. Commercial licensing is not extended to individual users, it only applies to the end product itself. I have updated the associated points above to clarify this somewhat.

Does this change anything in #2 or #3 since they won’t license to end users??

Hello Jason,

Thank you for your message. Please allow me to clarify how our Licenses work,
as I believe it will be helpful to your understanding.

As explained below, MPEG LA’s Patent Portfolio Licenses provide coverage under
patents that are essential for use of various technology standards, including
MPEG-2, MPEG-4 Visual (Part 2) and AVC/H.264 (MPEG-4 Part 10). As a result, the
party that offers the end product to the end user is responsible for being
licensed and paying the royalty.

Therefore, in the normal course, the provider of the ffmpeg player or VLC
player would be responsible for being licensed and paying the royalty.
Unfortunately, the providers of these products have not taken a License or paid
the applicable royalties. As a result, the products are not licensed.

Although our Licenses do not directly provide coverage for an end user and
anyone in the product chain may be held responsible for an unlicensed product,
a royalty paid for an end product by the end product supplier would render the
product licensed in the hands of the end user. Therefore, the end user would
not normally pay a royalty to MPEG LA for using such a product, but where a
royalty has not been paid, such product is unlicensed.

In this case, as you appear to be the end user, we suggest that you choose a
player from a licensed supplier. In that regard, we maintain lists of Licensees
in Good Standing to each of our Licenses in the corresponding sections of our
website http://www.mpegla.com.

Finally, please note that since you will not benefit from coverage under the
Licenses, we will not execute the signed Licenses that you have returned to us.

I hope the above information is helpful. If you have any further questions,
please do not hesitate to contact me directly.

Best regards,

Peter

Peter Hagen
Licensing Associate
MPEG LA, LLC

Hopefully we can look forward to more-and-more coverage of the codec and related technologies and, given that it’s free software, we, as a community, can contribute towards its improvement for the benefit of everyone.