Long, detailed post by Microsoft’s Dean Hachamovitch on HTML5, H.264, and WebM. It’s a cogent take, with pointed questions for Google (and other proponents of WebM/VP8):
Offers of “free” or “royalty-free” source code and strong
assertions that the technology is “not patent encumbered”
don’t help when a patent holder files a complaint that your
video, your site, or your product infringes on her intellectual
property. The only true arbiter of infringement, once it’s
asserted, is a court of law. Asserting openness is not a legal
defense. Whether one supports open technology or not, there are
practical liability issues today that need to be examined. These
issues motivate different potential approaches to risk protection.
One path is indemnification. For example, will Google
indemnify Mozilla, a PC OEM, a school, a Web site, a chip
manufacturer, a device company, or an individual for using WebM?
Will they indemnify Apple? Microsoft? Will they indemnify any or
all of these parties worldwide? If Google were truly confident
that the technology does not infringe and is not encumbered by
patents whatsoever, wouldn’t this indemnification be easy?