Why only sort of? Because of a complex patent case that — unusually — involves courts in both the US and Germany, which saw its verdict handed down on Wednesday.

That’s when Judge Holger Kircher of the Mannheim district court granted Motorola a permanent injunction against those specific Microsoft products because they infringed on two video compression patents that Motorola owns. But the ban won’t actually come into force until Motorola applies for that to happen.

Motorola’s not yet said whether it will take this drastic step, and it’s unlikely to do so soon. Microsoft knows it, too. This from their statement:

“Motorola is prohibited from acting on today’s decision, and our business in Germany will continue as usual while we appeal this decision and pursue the fundamental issue of Motorola’s broken promise.”

Confused? That’s not a surprise.

The underlying reason for this state of affairs is that the two patents in question are essential to the H.264 video codec — the same codec that’s used by the world and its dog. And when a patent is that important, it generally has to be made available by the patent holder to rivals under fair, reasonable and non-discriminatory (FRAND) terms.

Motorola has lots of patents that are supposed to be covered by FRAND terms, but in recent years it’s been making a habit of going to its rivals and demanding royalties that amount to a chunky 2.25 percent of the sales price of products in question.

German courts seem more eager than most to allow FRAND patents to be used as legal weapons, as shown recently when Motorola got the iPad and iPhone briefly banned in the country. However, Apple and Microsoft complained to European regulators over the practice, and the result is that Motorola is now the subject of two official antitrust investigations.

The transatlantic connection

Meanwhile in the U.S. last month, a judge granted Microsoft an injunction and restraining order that prevents Motorola from enforcing Wednesday’s Mannheim verdict, which everyone was expecting (Microsoft even moved its distribution operations out of Germany in anticipation).

Because the two companies are duking it out over precisely the same patents in the US courts, the judge said it would be wrong for Motorola to take advantage of the German court’s sympathies before the US legal system can decide whether Motorola is playing fair or not.

On top of that, Microsoft is going to appeal the Mannheim decision. If Motorola wants to enforce the judgment in the meantime, it has to pay hundreds of millions of euros as a bond, which it will lose if the appeal prevails.

All of which is why Motorola only has this to say right now:
 

“We are pleased that the Mannheim Court found that Microsoft products infringe Motorola Mobility’s intellectual property. As a path forward, we remain open to resolving this matter. Fair compensation is all that we have been seeking for our intellectual property.”

Whether that compensation is fair or not, is now a matter for several very high-profile investigations to determine.

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The new High Efficiency Video Coding (HEVC) spec, also referred to as H.265, should be a lot more efficient than H.264, which is the format of choice for most IP-enabled devices and applications. The format, which is being developed by the ISO/IEC Moving Pictures Experts Group (MPEG) and the ITU-T Video Coding Experts Group (VCEG), is expected to need 25 to 50 percent fewer bits for the delivery of H.264 video of the same quality.

As video growth explodes, network operators will welcome any help they can get in lowering the load of TV and movie content being streamed to mobile phones and tablets. With that in mind, saving up to half the number of bits for the same quality video file seems an attractive proposition.

Last year, the amount of data pumped over mobile networks topped an exabyte — that’s 1,000 petabytes or a billion gigabytes — and there appears no end in site to the growth in mobile data. Cisco estimates, for instance, that global mobile data traffic will increase 26 times from 2010 to 2015, to 6.3 exabytes per month. That’s being driven by connected devices grabbing a large portion of data being transfered. Cisco expects that the amount of Internet traffic served to PCs will drop from 97 percent in 2010 to 87 percent by 2015, due to growth in the number of smartphones, tablets and connected devices owned by consumers.

Video is also a big part of that growth: A recent report from Visiongain estimates that video traffic will make up more than 60 percent of global mobile data traffic by 2016. The research firm estimates that the percentage of smartphone users who watch mobile video will grow from 29 percent to at least 40 percent by that date. And with the availability of high-speed LTE networks, the quality of video streaming over those networks will only continue to improve.

But all that mobile video will soon begin putting strain on mobile networks. Earlier this month, a report from Tellabs showed that delivery of mobile data could become unprofitable for network operators by as soon as 2013. As network operators look for ways to improve the efficiency and profitability of their networks, H.265 looks like a possible savior.

The good news is that H.265 is on its way to standardization. The bad news is that it likely can’t come quickly enough. The spec is expected to be circulated for comment next February, with some initial applications taking advantage of it in early 2013. The immediate expectation might be that mobile networks could see some short-term benefit from more efficient video delivery.

However, Elemental Technologies CEO Sam Blackman said in a phone interview that we’ll probably see higher-quality video on more devices than see the amount of mobile data transfered drop. That is, video producers will likely boost video quality rather than issuing the same quality video and taking advantage of the bandwidth savings. While it might not help operators, it will be a boon to consumers, and could make mobile video even more attractive and in-demand.

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WebM is based on the VP8 codec that Google acquired as part of its purchase of On2 Technologies in early 2010. Google released WebM with a royalty-free, open-source license a few months later, and since then it has been busy building support for the format by layering it into various Google products.

The search giant dropped support for H.264 in the latest version of its Chrome browser, making WebM the only natively supported format for HTML5 video. It has also been busy transcoding YouTube videos to support WebM for HTML5 video playback.

MPEG LA’s plans to establish a patent pool to be used against WebM are nothing new, as the latest statements follow previous threats by the licensing group. (See here and here.) But this is the first time the group has given a hint that it actually has some patent holders on board to back those threats.

As we’ve written before, MPEG LA’s threats come with a few caveats:

First, despite several similar warnings against [Ogg] Theora, MPEG LA has never acted to enforce its patents against that open-source codec. But Theora has been around since 2000, and as such one could argue that as a result, MPEG LA would have a difficult time enforcing the patents that it supposedly infringes on. But VP8 is more or less brand-spanking new, and therefore fair game.

Second, Google has a lot more resources than Xiph.org — the group that controls Theora — does, and won’t be going down without a fight. It spent more than $120 million to purchase On2 and its technology, and wouldn’t have done so if it weren’t committed to making VP8 open source. Not only that, but the search giant said it’s done its due diligence and is confident that VP8 doesn’t infringe on others’ patents.

Google seems to be readying its own defense against MPEG LA’s patent pool, as it has gotten such companies as LG Electronics and Cisco to provide some backing through the WebM Community Cross-License. At the same time, just the threat of patent litigation against those who choose to adopt the WebM format might be enough to keep some publishers and developers away.

All of that said, all this saber-rattling might not even matter: Despite Google’s best efforts to push adoption for WebM, the format has gotten very little takeup from other publishers or developers. Recent research from MeFeedia found that nearly 70 percent of all videos it indexed were encoded with H.264, compared with just 2 percent of those encoded in WebM.

Photo courtesy of (CC BY 2.0) Flickr user cell105

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H.264′s market share continues to widen over competing video formats, as it now accounts for nearly 70 percent of videos indexed by MeFeedia. That’s a huge increase in a very short amount of time, as just last May, when only about 25 percent of videos were available in the H.264 format. And while the percentage growth has slowed in recent quarters, it remains the dominant format for streaming video delivery.

The growth in H.264 encodes is being driven by the adoption of video on tablet devices like the iPad , as well as connected TVs, Blu-ray players and other broadband-enabled video devices. Due to hardware acceleration built into many existing connected device chipsets, H.264 is by far the dominant format for smart TVs and related products.

It’s also an acknowledgement of the strength of the iPad for mobile viewing. There are more than 200 million iOS devices on the market, including 25 million iPads, and H.264 video is the best way to reach those devices. According to MeFeedia, the iPad has the highest engagement among devices, with 40 percent more videos viewed per use than Android, iPhone and desktop users.

While H.264 continues to dominate, the latest numbers on Google’s open-source WebM video format show that it has yet to catch on with publishers. More than a year after its launch, WebM accounts for less than 2 percent of videos indexed, according to MeFeedia. While that is expected to grow — particularly as YouTube continues its process of transcoding all its videos into the WebM format — it’s still a pretty small number for a codec that boasts fairly broad browser adoption and growing support from consumer device manufacturers.

WebM is supported by Firefox, Opera and Google’s Chrome web browsers. In that latter case, in fact, WebM is the default video codec supported for HTML5 video playback, as Google removed support for H.264 in the latest version of Chrome. It’s also gained some hardware backing from consumer electronics manufacturers like Samsung, LG Electronics and Cisco, and has been available on Android devices since the release of Gingerbread.

Despite growing support, it may still take some time before WebM gains the type of hardware acceleration required for broad publisher usage. The good news for Google — and for WebM advocates — is that things can change quickly in the online video market. One need only look at the massive increase in H.264 adoption to see that.

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Fast forward four years: YouTube is still around, but everything else has changed. None of the other user-generated video companies still exist in their original form. Adobe Flash is still the default option for video playback, but it’s far from ubiquitous. Browsers are now a grab bag of market share: IE (39 percent), Firefox (30 percent), Chrome (16 percent), Safari (6 percent) and Opera (2 percent).

Meanwhile, HTML5 promises to reinvent the video experience through the native use of the video tag and built-in codec support. And Apple iOS devices — which don’t support Flash — have now grown to more than 2 percent of all web browsing, with no sign of slowing. Finally, there’s a revolution taking place on the TV screen: Internet-connected “smart” TVs are everywhere, and video game consoles and other devices are providing a home to every type of content known to man.

Consumers today demand a TV-quality experience across every device they own. Among key demographics, video is now an always-on, always-with-you endeavor.

In 2007, moving video from camera to production to finished output involved little encoding mastery. That experience was mainly about getting a single compression right — a 1:1 ratio of source files to renditions, if you will. Back then:

• Codecs mainly served a single purpose: Flash playback. Most consumption occurred through progressive download, usually over HTTP. The biggest drawback was buffering, or the starting, stopping, stuttering and waiting for a video experience as files arrived at different times.
• Higher bit rates, which offer the promise of higher quality, simply take up more bandwidth, which increases wait times and consumer abandonment rates. Internet connection speeds, especially those in the United States, were also fairly slow. The median U.S. download speed was less than 2 Mbps.
• Screen resolutions were fairly small. Since they were consistently lower than 1024×768 pixels, that meant native 1080p video was impossible and 720p video was out of reach for a significant portion of Internet viewers.

How are things different today?

• There are a wide variety of codecs and player types. Flash is still the dominant Web-only playback runtime, but it features a variety of codecs. It’s also common to see H.264/AVC as the primary codec for Apple’s iOS devices. And the coming HTML5 wave includes WebM, Ogg Theora and H.264/AVC as natively supported codecs, depending on the browser choice.
• The median download speed for the nation is 3 Mbps.
• The primary method for delivering video is streaming, and with the advent of adaptive bit rate technology, companies are creating a better user experience. But adaptive bit rate is based around multiple renditions of the same video, which means cutting it into five-second chunks with multiple bit rates supported.
• More than 85 percent of browsers support screen resolutions higher than 1024×768, compared to only 26 percent four years ago.

Today, the testing, tuning and optimizing of one video to a given screen involves a lot more work: There are many more codecs, screens and processor types that go into delivering an optimal playback experience to an audience. That’s all forcing video content providers to think about more than just the creation of content.

Publishers now have to consider which video players, which browsers, how much network bandwidth and which supported devices they plan to target. They need one rendition of the file for each combination of target device, bit rate and network they choose to deliver to. It’s not uncommon for the most ambitious video distributors to create and deliver upwards of 100 video renditions per source video asset.

So what is the solution?

The video production industry needs to take a strong guiding hand to educate and inform content creators what their choices are, how they might plan efficient strategies to meet their goals, and how to future-proof their infrastructure for what are undoubtedly irreversible trends.

Photo courtesy of (CC BY 2.0) Flickr user .:[Melissa]:.

Eric Quanstrom is the COO of Sorenson Media, a vendor with wide expertise in the space of video encoding and transformation.

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From the blog post:

“Given the massive size of our catalog — nearly 6 years of video is uploaded to YouTube every day — this is quite the undertaking. So far we’ve already transcoded videos that make up 99% of views on the site or nearly 30% of all videos into WebM.”

YouTube started to transcode some of its catalog right after Google open-sourced WebM last May, and WebM Product Manager John Luther said last November that the site had made 80 percent of the most popular videos available in WebM.

However, most YouTube users won’t get to see any of the clips in the new format; users have to have a browser supporting WebM and actively opt into the HTML5 trial. WebM is currently supported by Firefox, Chrome and Opera. IE users can watch WebM videos by installing an additional codec, and Apple’s Steve Jobs has made it clear he won’t support WebM at all.

The open format recently made headlines when MPEG LA opened up a call for patents to form a WebM patent pool. Google has rejected the idea that WebM is subject to patents held by other companies.

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Firefox 4 is the first official release to include WebM support. Beta versions of Firefox 4 have been able to play WebM videos for a number of months, but those were limited to a small group of early adopters. Firefox 3.6, on the other hand, was used by around 25 percent of all web users in February, according to the latest data from Statcounter, and all these users are now prompted to update to this week’s release, which will make their machines WebM-capable.

Around 50 percent of all web users could soon have access to WebM video playback.

The implications are even bigger when you look at the overall browser market, which has been divided between browsers supporting open video formats and browsers that don’t. Both Safari and IE don’t support WebM and instead use H.264 for HTML5 video playback.

Google’s Chrome added WebM support last year, and Google decided to discontinue support for H.264 entirely earlier this year. Firefox has never supported H.264, but until recently, only supported the inferior Ogg Theora video format for HTML5 video. Opera was the first browser to add support for WebM earlier last year. Combine those two with Firefox 4, and you’re looking at a significant market share, as Mozilla Open Source Evangelist Chris Blizzard pointed out on the WebM blog:

“Firefox accounts for about 30% market share – or nearly a third of all browser users. When you combine that with Chrome and Opera it means that about 50% of internet users will have access to the high-quality WebM codec over the next few months, following the Firefox 4 adoption curve.”

Numbers like these could convince more web publishers to use WebM, or possibly expand some early tests of the format. One candidate for such a move is YouTube, which has been experimenting with WebM as part of its HTML5 trial. This beta test is currently opt-in, and it’s not widely publicized on YouTube’s website.

However, YouTube has been actively converting much of its catalog to WebM, and in November, had already made 80 percent of its regularly requested videos available in the format. With half the browsers accessing the site being capable of WebM playback soon, there’s little reason why YouTube couldn’t promote the format more aggressively.

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“MPEG LA, which was formed in the late 1990s, manages the licensing of more than 1,700 patents used in a high-definition video encoding standard known as H.264. The Justice Department is concerned the group’s actions may stifle competition to that dominant format, the people familiar with the matter said.”

That sentiment was echoed by Christopher “Monty” Montgomery, the mastermind behind the Ogg Theora open-source video codec, when we talked to him back in February. “MPEG LA is trying to make it illegal to ever compete with them again by sewing an entire industry field up into an impenetrable patent thicket,” he said, adding: “They’re not maneuvering based on concrete claims. They simply want competition to be illegal.”

MPEG LA disputed these claims, with a spokesperson telling us that “the provision of a joint patent license can greatly reduce the potential threat of litigation by clearing away patent thickets when they exist.”

The question is: Do they exist? The Journal quotes MPEG LA CEO Larry Horn calling the idea that WebM is patent-free “nonsense,” and Apple CEO Steve Jobs went on the record last year saying that “all video codecs are covered by patents.”

Montgomery, on the other hand, believes that any potential claims could easily be resolved by WebM developers. “Maybe something completely unexpected pops up, someone really does have a patent no one saw coming — We sidestep it, work around it, cut it out immediately,” he told me.

The bigger issue at hand is whether MPEG LA and its H.264 licensees, which include Apple, actually want to start such a cat-and-mouse game. The mere threat of a patent pool or possible patent litigation could be enough to keep people from embracing WebM, though MPEG LA denies such claims. We’ll have to wait and see whether the DOJ and other regulators believe the company.

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Skype is rapidly extending its reach beyond the PC and expanding the number of devices consumers can use its video chat service on. Since early 2010, the company has been working to enable users to connect web cams to Internet-connected TVs from manufacturers like Panasonic and Samsung, making the service available to users in their living rooms. At the same time, Skype is aggressively positioning itself to dominate the mobile market, releasing an updated iOS app that enables iPhone owners to use those devices’ forward-facing cameras to video chat with each other. The company is also aggressively hiring to support other mobile platforms.

Until recently, however, iPhone users weren’t able to connect to Skype users on other devices due to the video format it used. The decision to adopt H.264 changes that, as it has become the de facto codec for video delivery across a wide range of devices. Due to hardware acceleration built into low-powered devices such as TVs, Blu-ray players and mobile handsets, video publishers have increasingly turned to H.264 for video playback; Skype is merely following that trend with its recent implementation.

H.264 has become the best way — and in some cases the only way — to deliver video onto connected TVs and mobile devices, but a battle is breaking out over the video format used by web browsers for “standards-based” HTML5 video playback. While all modern browsers are working to support HTML5 and its video tag, which enables video playback without the need for a proprietary plugin like Adobe’s Flash Player, browser makers are divided on which video format to support. Microsoft’s Internet Explorer 9 and Apple’s Safari browser have pledged support for H.264, but Google’s Chrome, Mozilla’s Firefox and Opera are backing Google’s open-source WebM format.

Since it’s a desktop application today, Skype doesn’t necessarily have to worry about the format war developing; however, if it plans to create embedded, standards-based, video chat applications that run in the browser, it might have to align itself with one format or choose to support both. Or if it does plan to run in the browser, Skype could just do what many publishers do today — and deliver video using Adobe’s Flash plugin.

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In spite of all the comments about this announcement, most people seem to gloss over the practical irrelevance of this announcement. There’s a short, simple reason for this.

Flash

Suppose Internet Explorer 9 ships tomorrow and in the middle of the night, the IE team abandons H.264 and ships the browser with WebM instead. Next, suppose every single Internet Explorer installation out there is instantly updated to v9, making WebM support widespread.

Nothing would change. Why? Because all video watched on the desktop is played through Flash, and Flash isn’t going away any time soon.

Publishers currently cannot move from Flash to HTML5, because HTML5 lacks vital technologies like adaptive streaming (for long-form and live content), content protection (for premium content) and playback locking (for advertising). On top of that, today’s entire online video ecosystem (including ingestion, transcoding, advertising, analytics, viral sharing, etc.) is Flash-based. Both obstacles will be overcome in time, but this will be a slow process of incremental technological advances.

To force a transition, some bloggers have suggested Chrome should drop support for Flash. This definitely won’t happen. Flash is absolutely vital to the web. In addition to video, there are applications like advertising — a $25 billion industry — and gaming (Farmville!) that fully depend on it. Any browser dropping Flash would instantly get dropped by both publishers and users in turn.

In sum, desktop browsers are stuck with Flash, and publishers will simply continue to use Flash. As the migration to HTML5 starts to happen, publishers will leverage Flash in browsers that do not support their video format of choice (be it H264 or WebM). Video platforms like Brightcove and video players like the JW Player facilitate such functionalities today.

As it pertains to WebM/H.264, desktop browsers will not move the needle either way. But something else will.

Devices

Devices — such as smartphones, tablets and set-top boxes — do not have a history of supporting Flash, and many will choose not to, as Apple has decided for its iOS mobile operating system. On devices where Flash is supported, CPU limitations will make it impossible to play video using software-based decoding. This means that even Flash will be limited by whatever video codecs the devices support in hardware. In other words: Flash cannot be used as a fallback for unsupported codecs as it is today for desktop browsers.

The choices device vendors make will have the greatest impact on the adoption of WebM. Publishers will be forced to choose between publishing their videos in whichever formats are natively supported on the most popular devices, or choose not to support certain platforms. While it’s still possible to distribute your content without worrying too much about the discrepancy between the platforms, the incredible growth of the smartphone, tablet and set-top market will soon take that option off of the table.

That said, the odds are against WebM for now. H.264 is available on nearly every phone, tablet and set-top out there, while WebM isn’t available on any devices. Only after the launch of WebM hardware decoding can we expect to see announcements that can influence the uptake of WebM versus H.264. But who will support WebM decoding? How good will it be compared to H264? And who — besides Google — will dare drop H.264 decoding support?

Only after the various device vendors have picked their side — and users have picked their devices! — can we reevaluate. Until then, announcements like the one made by the Chrome team will only be symbolic in value.

Jeroen Wijering is a co-founder of LongTail Video and the creator of the JW Player, the world’s most popular video player for websites. Launched in 2005, the JW Player is active on over 1.5 million sites, including such WhiteHouse.gov, IMDB, Cisco, NASA, Sony PlayStation and Oscars.org. In addition, Jeroen has developed several other projects including Sync.nl, an online magazine for entrepreneurs and professionals as well as a media-hosting service called Bits on the Run. Jeroen graduated from the Design Academy Eindhoven, with honors.

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