Balkinization: MP3 Intellectual Property Restrictions and Digital Audio Innovation

MP3 Intellectual Property Restrictions and Digital Audio Innovation

Guest Blogger

Laura DeNardis

[The author is a Resident Fellow at Yale's Information Society Project]

Digital standards continue to emerge as the 21^st century’s antitrust concern. A San Diego federal district court recently ordered Microsoft Corporation to pay $1.52 billion to Alcatel-Lucent for infringement of two MP3-related patents. MP3 (short for MPEG Audio Layer 3) is a formatting standard for structuring and compressing digital audio. Microsoft originally licensed MP3 for $16 million from Germany-based Fraunfhofer Institute, a co-developer of the MP3 format along with AT&T Bell Labs. Bell Labs was spun off in 1996 as part of Lucent, which merged with Alcatel to become Alcatel-Lucent.

The issue of timing is becoming a trend in standards-related patent infringement cases. Interest in enforcing patents emerges long after the patent filing but only after a standard becomes widely entrenched in popular products and embraced by consumers. The MP3 patent infringement case is reminiscent of the recent ruling that an Australian government agency holds patent rights to technologies implementing two Wi-Fi standards (802.11a and 802.11g) and one proposed standard (802.11n). This trend of selective patent enforcement only after massive market proliferation raises questions about the need for some form of statute of limitation on when patent enforcement must commence or at least raises the issue of greater disclosure of patents. Part of the confusion is that many companies believed it would suffice to license MP3 from Fraunfhofer.

What are the possible short term implications? Alcatel-Lucent may seek damages from any of the hundreds of companies relying on MP3. Some of these include Apple, Bang & Olufsen, Nokia, Sony, and Yahoo. New companies seeking to develop innovative products based on the MP3 audio format may be discouraged for fear of patent infringement. The bottom line is that the MP3 infringement case could serve as an economic disincentive for digital audio product innovation and interoperability. Furthermore, damages and any additional royalty payments that arise from MP3 arrangements will ultimately be passed on to consumers. Cases like MP3 and Wi-Fi patent infringement only encourage ongoing patent zealotry and defensive filing of patents, already the norm in the standards process as evidenced by the more than 300 patents already encumbering Wi-Max, the broadband metropolitan wireless standard poised to become a significant competitor to broadband cable and telecom Internet access duopolies. The MP3 patent episode may also discourage companies from demanding patent disclosure relative to standards because, if the ruling had found Microsoft guilty of willful infringement rather than infringement, the penalties would have been much steeper. Finally, there is global momentum towards non-proprietary digital formatting standards – open specifications that maximize interoperability, economic competition, and user choice. Although MP3 is not necessarily an open standard, the threat of exorbitant patent infringement fees for using de facto standards may discourage some from investing in non-proprietary, interoperable formatting standards. The MP3 case has implications for digital audio innovation, consumer choice, and the fate of the digital music industry generally.

The larger issue is whether information and communication standards should be royalty-free to promote competition, innovation, and interoperability. Some governments have established procurement polices based on adherence to open standards. For example, the European Interoperability Framework for Pan-European eGovernment Services, has called for greater promotion of interoperability through the use of open standards in eGovernment services. The EU provides a three-fold definition of minimum characteristics a specification must have to be considered open. The intellectual property underlying the standard must be irrevocably provided on a royalty-free basis. Additionally, the standards must be developed in an open process and be published and available freely or for a nominal fee. Other countries have similar policies and, just last week, California followed Minnesota, Texas, and Massachusetts in introducing legislation addressing the issue of open standards and government procurement, including, in some cases, the requirement that standards be available on a royalty-free basis.

The bottom line is that royalty-free digital standards maximize the potential for innovation, interoperability, and user choice. Perhaps this MP3 intellectual property case will encourage the use of an alternative audio format that is open in all respects. Meanwhile, the messy reality is that excessive and often non-disclosed patents are the norm, leaving one to speculate about whether the next shoe to drop might be a patent infringement claim on the use of 0s and 1s.

Posted 9:22 AM by Guest Blogger [link]

Comments:

Good post!

# posted by

Anonymous : 7:01 PM

The entire notion of applying patents to software - including digital standards - is an idea increasingly proving to be dysfunctional. Software is the most tractable of mediums, and unique in ways that seem to defy the patenting goal of fostering invention and innovation. What appears to be happening is that as soon as someone acquires a patent and tries to enforce it, a patent-free alternative comes into existence, complete with patent-free software to convert existing material (audio, video, or any other media) into the unpatented alternative.

What appears to be happening is that patents, rather than facilitating innovation, are creating a market for freedom. Unpatented standards like Ogg Vorbis are emerging as popular alternatives to patent-burdened standards. This movement to patent-free digital standards started, it seems, with the Unisys-GIF debacle. Functional alternatives to GIF appeared shortly after Unisys declared it intended to cash in on a compression patent which was part of the original open GIF standard. It unclear whether or not Unisys made any financial headway with their patent crusade.

Software, in addition to digital formats, is also experiencing an emergent market for freedom, as evidenced by the free software movement. Its all quite interesting, since the near-complete futility of the patent process in software continues to grow. Some well-established companies stake their bottom lines on protections offered by patents, yet in some of the fastest growing areas of industry, the stitches in the patent fabric are beginning to rip (no pun intended).

What's fascinating is that the current legal system seems at a disadvantage in dealing with such a highly malleable and unique medium. Software is both functional and expressive. A parody of software and original software (or a digital standard) are perfectly indistinguishable. A functional equivalent is never more than a mere thoughts distance away. Patent a file format, and a completely distinct yet functionally equivalent format will then appear.

Perhaps an entirely unique and new system is needed to facilitate innovation in digital realms.

# posted by

John : 1:44 PM

... eaving one to speculate about whether the next shoe to drop might be a patent infringement claim on the use of 0s and 1s.

Some doofus claimed the patent on the use of the logical function XOR (exclusive OR) to invert the bits of a bit-mapped display to produce a blinking cursor without destroying the underlying information. I doubt this patent would have withstood challenge; we'd been doing just that with bit-mapped displays long before they ever got popular (memory used to be expensive; the memory we used was so cruddy that some crude animation hacks at the time would leave a trail of droppings across the screen due to memory failures, but it was therefore cheap enough to use as display memory). Not only that, but this idea (at least to my mind) harldy passed over the "non-obvious" bar either.

Fortunately, technology passed this doofus by, and by the time he started claiming the patent, cursor (and display processor) technology had far outstripped the features of the "XOR cursor" and I think most people just laughed at him....

I agree with the thrust of the article: "Standards" should not be encumbered with patents, and if someone wants to try the market with a patented technology, they ought to go it alone with only their own product (or licensee's) and see how they fare. If it's a particuarly useful patent, they'll do OK. If not, people will go for the alternatives that are "open source" and unencumbered.

I'd note that IBM held a slew of patents for so many technologies that it would have been hard for anyone to build a useful computer without using such (for instance, the "floppy disk"). IBM could have withheld tehse patents from competitors, but they did an interesting thing: They had a standard patent agreement that all patents would be available for a nominal fee for everyone ... provided that the other party agreed to the same deal for IBM. Nice of them, and opened up the computer market ... but perhaps that huge anti-trust suit hovering over them might have played a little part in their magnanimity.

Cheers,

# posted by

Arne Langsetmo : 9:35 PM