AWS says you're on your own if media codec patent owners come knocking

Amazon is warning users of its media services that it will not protect them against patent infringement claims relating to media codec technology supported by those services. In a February 2 notification sent to relevant customers, the cloud giant says it is updating its Service Terms to specify it does not have "defense or …

[Philip Storry]

Excerpt from the Annual Meeting of Evil (Self-Described) Geniuses

From the bowels of an intellectual hellscape that really shouldn't exist, we present: Software Patents!

Yes, that's right, we've managed to convince politicians and courts that mathematics and logic should be be patentable.

And boy, are we going to abuse this! It's very much a long-term play, but we think we could potentially hold back human progress by 20 years. And that's not a fixed term of 20 years, that's a sliding window we can keep moving into the future thanks to the magic of generating new patents or updating old ones!

Now, on to our next item on the agenda - charging people for air.

Whilst we've made great strides in getting people to pay for water, air remains a more difficult challenge...

[Long John Silver]

Re: Excerpt from the Annual Meeting of Evil (Self-Described) Geniuses

Many people are yet to grasp that the 21st century qualitatively differs from all times before.

In particular, latter 20th century advances in digital technologies, plus the now prominent 'AI' developments, are upsetting cherished assumptions about ownership of discourse and its distribution. Moreover, profound changes in the 'world order' are gathering momentum and are set to overturn many certainties prevalent in days gone by.

Just as disobedience to copyright by end-'consumers' of knowledge and culture is forcing 'rights holders' into costly, ultimately futile, rearguard action, so too shall disregard for pernickety patents by major commercial firms destroy another edifice of 'entitlement'. The emergence of BRICS, with rejection of 'certainties' engendered during the colonial era, shall accelerate changes already in progress.

[Jeff 11]

Re: Excerpt from the Annual Meeting of Evil (Self-Described) Geniuses

I'm sure AWS would like to pass the buck, but I don't see how the end user could actually be held legally responsible for claims by codec licensors. It'd be like suing the buyer of counterfeit goods for making counterfeits, rather than the counterfeiter...

As far as I know AWS exclusively control - and charge for - the means of production of artifacts as these are managed services, not dumb instances you can load your own encoders on to - and so the product of that unlicensed activity is enabled and most importantly SOLD by AWS. Also unless AWS forces the end-user to agree to the terms of the codec licenses, how can they possibly be in breach of them?

[m4r35n357]

Re: Excerpt from the Annual Meeting of Evil (Self-Described) Geniuses

"convince" is a loaded term here!

[JohnSheeran]

Re: Excerpt from the Annual Meeting of Evil (Self-Described) Geniuses

So, if I'm reading what you're saying correctly, you're saying that labor and materials should not be protected/compensated in any way? I'm not so much talking about software but the fact that you mentioned water and air. Everything should be free?*

*Yes, these corporations and their lawyers are evil. Agreed on that point.

[Philip Storry]

Re: Excerpt from the Annual Meeting of Evil (Self-Described) Geniuses

No. I'm not completely against the idea of software patents, but existing patent terms are a bad fit for software. I don't think that they are a fair balance of protection for labour versus effect on the market.

A patent is a government granted monopoly. We allow the time-limited protection of that monopoly in order to encourage innovation. But software patents have the opposite effect, locking up techniques and advances for far too long.

The term for a patent is 20 years, which is an eternity in software. The 20 year period is OK for physical inventions where someone may need acquire funding, to set up manufacturing, distribution and so forth. In the physical world a patent provides protection against someone else, probably a large company or a rich person, gazumping you by repurposing their existing funding/manufacturing/distribution.

In the digital world the barriers to entry are much, much lower. DOOM was all around the world in the 1990s long before physical versions were even being printed, let alone heading towards the shops. And that's in the pre-internet digital landscape. You can now write software now and have it available anywhere on the planet within minutes.

The manufacturing and distribution stages are at least an order of magnitude, probably several orders of magnitude, easier for digital goods (including software).

I think in the current climate a term of 4-6 years would be OK. I might even be persuaded to go as high as 10 years. But 20 years is simply ridiculous. It holds the market back too much.

And this is before we even start talking about overly broad patents, and how the patent assessors are underfunded, overworked, and ill-trained to see what is obvious vs innovative.

[Herbys]

Re: Excerpt from the Annual Meeting of Evil (Self-Described) Geniuses

At the very least, patent process should change to only protect non-obvious inventions that require directed effort to come up with them. The only social benefit of patents is providing an incentive to do research in new inventions, but for inventions that do not require such investments it's just a bonus for smart people, but has no benefit to anyone else.

You should be required to file for a patent *before* developing your invention.

That filing needs to state what problem your invention intends to solve.

For one year, you don't get any patent or protection. If someone comes up with your idea based on your description of the problem, the idea was obvious and shouldn't be protected. No one gets a patent on your idea. If someone comes up with a different solution, you are still on the run for a patent but only for your solution.

If after one year no one has come up with a solution that matches yours, you file for a patent under the cover of your previous filing, and if granted you get protection for your job-obvious idea.

This process provides the same level or protection granted by patents today but only for inventions that are not obvious (which is something required by patents today but that not enforced since it's impossible for patent clerks to be specialists in a million complex fields as needed to assess obviousness), and that require effort to develop (and not something that comes up spontaneously and that would be produced whether you expect to profit from it or not).

[JohnSheeran]

Re: Excerpt from the Annual Meeting of Evil (Self-Described) Geniuses

Thank you for the clarification.

[Philip Storry]

Re: Excerpt from the Annual Meeting of Evil (Self-Described) Geniuses

No problems. Thanks for the question!

It took a bit of editing to reply, but was worthwhile so as to make it pertinent. There's a lot more to discuss - patents vs copyright, who benefits from patents, and market benefits. But they're topics for some other day... ;-)

[gosand]

Re: Excerpt from the Annual Meeting of Evil (Self-Described) Geniuses

Ah, you see most air contains water molecules, so therefore if someone is breathing they are consuming water. You just need a bean counter to calculate how much of YOUR water is in the air, and charge accordingly.

[Natalie Gritpants Jr]

Run your code in Europe where software patents are unenforceable. Or somewehere else

[that one in the corner]

At the risk of being fair to Amazon

> "This is AWS saying they are still going to use unlicensed software in their products, but just not pay the license, and if the owners of the unlicensed products come to get them, then they'll just pass on your details and say sue them instead"

This is AWS saying they are providing you the opportunity to use licenseable software via their systems and, as always, it is up to you to check that your application running on AWS (or any other third-party computer. - or any computer at all, including your own desktop PC) is appropriately licensed. Which includes checking whether you fall into any exclusions from payment that any particular software, such as below a threshold usage, educational use etc: something only you can do.

At the risk of being fair to the users of AWS, those of them who do read the Ts&Cs they signed up for:

If AWS changed those Ts&Cs without an appropriate warning period (the definition of which period should be in the fine print; you did read them yes?) then sure, go ahead and gripe when telling El Reg.

And make sure that, if the Ts&Cs state there is (was) a component of the pricing that was going to pay for a patent license pool, you get the appropriate reduction in next month's bill. Oh, who am I kidding; reduction! Ha!

[GreenReaper]

Re: At the risk of being fair to Amazon

The issue is it isn't the software that's got to be licensed, it's the method. And in some cases, the relevance of the supposed innovation to the method is somewhat... tenuous. But proving that in court is likely to cost way more than the fee.

Added to that is that AWS is basically providing what you would get with hardware encoding without the indemnity, rather than just servers on which you could choose to run encoding software. It's only part of what you need.

[that one in the corner]

Re: At the risk of being fair to Amazon

> The issue is it isn't the software that's got to be licensed, it's the method.

To run the software, which will then execute the method, you need to abide by the license.

You wish to make a distinction between that and the situation where, to run the software you need to have a copy of that software and the proces of making that copy is what requires a license.

To confuse matters, you may even be paying an ongoing license fee that is a combination of both patent license and copyright license via a subscription.

From the p.o.v. of "are we licensed to do this thing on AWS" (or anywhere else) there is no useful difference between the two: in both cases, there is a license whose heeds must be met. In both cases, if you are contracting to run the software on third-party systems, such as AWS, the licensing may be arranged for you and rolled into the contract costs or you may need to do that yourself.

There are arguments to be made about the value (or lack thereof) of software patents, but from any practical point of view - AND in direct response to the excerpt I quoted - those are all fascinating philosophical issues[1] but are utterly irrelevant to the comment you are referring to. The issue is, AWS terms they are a'changing and trying to make some grand gesture about it isn't going to change anything.

> Added to that is that AWS is basically providing what you would get with hardware encoding without the indemnity, rather than just servers on which you could choose to run encoding software

If you are running on hardware FOR WHICH YOU BOUGHT A LICENSE (which is NOT a given! You can buy physical hardware without buying the license *using* it would incur; just go and buy a Raspberry Pi version 1, as many, many people have done; thankfully, the naive users were protected (or, if you wish, ripped off) by the system not utilising that hardware without a license) then, yes, you are licensed already. And you are quite at liberty to go off and run your load on that hardware. Nobody is stopping you. But if you want to do the thing in software without that specialised hardware, just as you did when you purchased the hardware, you are due to pay the license fee. If you are buying server time from AWS and you use it to run the licenseable software, the license fee is due. Right back to the original state.

If you are trying to make an argument that AWS is fiddling you because you've rented from them the specialised hardware *and* you can demonstrate that each instance of that hardware was purchased inclusive of the appropriate lifelong license (see above) *and* that AWS is now doing something nefarious instead of the usual "your total fee includes a portion to paydown our capital outlay" then I'm all ears.

[1] if you were to ask me personally, btw, you'd hear that I'm not for software patents and One Day, When The Revolution Comes... But in the meantime, this is the contract that the person TFA quoted, and I requoted, is embroiled in and it has to be dealt with in the current framework. Tomorrow, Comrades...

[Roland6]

Re: At the risk of being fair to Amazon

I suspect Amazon have been approached as licensers also want to get on the cloud subscription gravy train.

[doublelayer]

Re: At the risk of being fair to Amazon

Except that the software concerned was written by AWS, so they know what licenses apply to it more than the individual user does and clearly think that they don't have some of those licenses. It might be acceptable if AWS told users what licenses they would need, but they don't seem to have done that either. If I violate the license of a component I distribute in software I charge people for, the charge for the license violation will usually be directed to me, not the end user.

If your argument is the simpler "it's not illegal for Amazon to make the contract changes they have done", then you might be right, but it's an entirely useless counterargument for anything from the article or the comments thus far which consider whether it is ethical. You might also be wrong, because license terms on patented things are set by the patent-holders individually and often require licenses for the inclusion of their patent, so if Amazon is running code that violates that license, they may be culpable on their own whether or not their customers execute that part.

[The Indomitable Gall]

Re: At the risk of being fair to Amazon

Doesn't the article say, though, that the Ts&Cs are obscure, because they haven't made any obvious way to know which patents that were previously covered by AWS are now no longer covered....?

[Anonymous Coward]

H264 is 22 years old

And doing video just fine.

Just pointing that out!

[IGotOut]

Re: H264 is 22 years old

You may want to check...

Sorry to shit in your sandwich, but which revision are you using?

https://en.wikipedia.org/wiki/Advanced_Video_Coding#Versions

[Anonymous Coward]

Re: H264 is 22 years old

Most video is version 3. Everything after Bluray came out is backward compatible.

The later stuff is for server side processing or specific features like 3d TV.

[Anonymous Coward]

> This is AWS saying they are still going to use unlicensed software in their products, but just not pay the license

I didn't think this is correct. It's not about unlicensed software. It's about licensed or free software which might use designs that are claimed by a third party as being protected by their patents. This is particularly tricky for codecs since you can't open some media files without using code that does things allegedly covered by some patent.

I don't know who makes the software on question, but the practice of suing the end use is infrequent in commercial software and much more likely to refer to open source software where suing a community of developers would be impractical. So the whole situation is most likely about Amazon nor committing to indemnify customers if someone decides to sue them for using some open source codec software.

[BasicReality]

Software patents shouldn't exist. We have copyrights, that's enough.