Did Google Let Patent Trolls Quash A Key Open-Source Technology?

From headline-grabbing threats by Microsoft (MSFT) to more subdued court battles involving the cloud, the open-source ecosystem has a pretty good record of winning patent challenges. But a crushing defeat has now tarnished that record with Google’s (GOOG) grudging surrender in a campaign to make the open-source VP8 video codec ubiquitous across the Web. Free-software stalwarts need not panic, though: In this case, they can blame Google, not a systemic failure by the open-source world itself.

Gavin Clarke over at the Register has written an excellent narration of the details, but here’s the backstory in a nutshell: In 2010, Google open-sourced VP8, a video compression codec, with the goal of using it to replace the proprietary H.264 codec that has traditionally predominated. In the last few months, however, facing a potential patent suite by MPEG LA — a patent-licensing firm, perhaps better known in the open-source world as a “patent troll” — Google and other major organizations, including Mozilla, have stepped away from VP8 and licensed H.264, a sign that they no longer believe the former has a shot at becoming the defacto video codec for the Internet. The collapse of the VP8 effort stemmed from concerns that parties represented by MPEG LA might be able to substantiate claims that the codec violated their intellectual proprietary and should not be as open-source as Google wishes.

Although only geeks may understand what a video codec is, this development has wide-reaching implications for pretty much anyone who uses a computer, smartphone or tablet today. It means consuming most video content on the Web will require proprietary software in the form of the H.264 codec, even if users are running a completely Free platform like Linux.

Google, Open Source and Patent Trolling

But that’s a discussion for another day. For now, let’s consider the legal implications at play, and the precedents they set. Why did an open-source initiative with central backing from an organization as large as Google falter because of the mere threat of a patent lawsuit, while in the past open-source organizations have routinely gone to court against patent trolls and won handily?

There’s one clear difference in this case: Google. Previously, companies like Red Hat (RHT), with the assistance of patent-documentation projects like the Linux Foundation’s, have led the charge against patent trolling. This time, the open-source ecosystem placed its confidence in Google to make sure VP8 stood up against legal threats. But Google — despite its immeasurably greater resources than most organizations that work solely in the open-source sphere — caved, apparently pretty easily, when MPEG LA began rattling sabers.

The precise reasons behind Google’s behavior remain unclear. Maybe the executives in Mountain View really thought they had no chance of winning a patent case about VP8, or maybe they no longer viewed the codec as important enough for Google’s longterm plans to justify an expensive legal battle.

Either way, the lesson for the open-source world seems clear: Don’t entrust the defense of open-source code solely to parties like Google. In my opinion, Google’s interest in open source centers mostly around sticking a thorn into the side of companies like Apple and Microsoft rather than placing open tools at the core of its own platforms. Leave the open source protection task, instead, to the seasoned veterans at Red Hat and the like.