This article is an attempt to win support for Theora over H.264 not by refuting the basic facts of the case, but by making us feel angry about those facts.
Gruber in fact does not appear to be wrong: there are indeed two classes of patents that Theora is exposed to (general but poorly known patents covering modern codecs, and the patents MPEG LA owns). There clearly are codec patents that MPEG LA doesn't own. There clearly are codec patents that they do own. MPEG LA clearly isn't going to sue, in the immediacy, over their own patents.
Meanwhile, it is indeed entirely in MPEG LA's own hands whether or not they will sue over use of Theora. They sure are a bunch of evil jerks. But that changes the facts of the case not one whit. Being upset about MPEG LA's IP position doesn't change what that position is.
The article refutes the assertion that Theora is infringing on patents held in the MPEG LA patent pool. The MPEG LA has been shaking a stick over Theora's head, but has yet to point out which specific patent(s) Theora is indeed infringing.
In fact, noone has come forward with a specific patent that has been shown to infringe after scrutiny and noone has yet sued Firefox for shipping this so-called infringing codec.
The tone of the article is basically a "put up or shut up" directed at the MPEG LA members. When someone is trying to spread FUD about your product, there's not much else you can do except ask that they stop talking and start showing evidence. Since they've been unwilling to do so for some time, it's natural to conclude that this is nothing more than sabre-rattling to try and drum up some extra MPEG LA licensees.
Do people familiar with the state of the art in codecs seriously think that MPEG LA doesn't have patents they could reasonably claim are infringed by Theora? That isn't the impression I had.
Noone, either familiar with the state of the art in codec or not, has come up with a reasonable set of patents that Theora's ancestor codec from 2001, VP3, could have possibly been infringing. Individuals are free to believe whatever they like, but there hasn't been any evidence of infringement beyond the MPEG LA's CEO making vague assertions.
The MPEG LA has a financial interest in keeping the patent situation around Theora murky, which they've clearly done well.
How did you get this impression? One of the ffmpeg guys had been hinting about this for a while and finally posted in a LWN thread to point out 3 Nokia patents he thought Theora infringed.
You could argue that the ffmpeg guys should be the ones to know best about MPEG patents that Theora infringes since they implement those codecs and as this example shows they are happy to jump to conclusions even when two of the patents clearly couldn't apply for the very basic reason of being filed after VP3 was made public. So the fact that they've not named names could be seen as a positive sign, but as with all things patents, proves nothing.
One of the main points is that code behind Theora has been made public for years, and in fact Xiph has been actively asking people to tell them if there is a patent violation. The significance of this comes into play in a potential lawsuit, because patent enforcement is simultaneously a burden on the patent-holder: if they are aware of a violation, it is their legal duty to enforce the patent, and if they fail in that duty then eventually they lose the right to claim damages from infringement (big oversimplification here).
The point being, even if MPEG-LA does have infringing patents, the patent holders can reasonably be expected to have known about it for years, and so if they decided to sue they would have to explain why they didn't enforce their patent in the years that Xiph has been asking them to enforce the patent.
Conclusion: all this talk about Theora potentially being in patent-jeopardy is FUD and BS.
It's trademark owners that have an affirmative duty to enforce their marks. The situation for patentholders is far murkier. It is far from true that a patentholder that knew about Theora for years would be simply unable to enforce their patent against Theora users.
It is far from true that a patentholder that knew about Theora for years would be simply unable to enforce their patent against Theora users.
It's not necessarily false either. The doctrine of laches (http://en.wikipedia.org/wiki/Laches_%28equity%29) says that you can't deliberately delay legal action in order to run up the alleged damages or prevent them from taking alternate paths. By publicly making potential patent holders aware of what they're doing, Xiph should be in a good position to claim that defense.
A laches defense in a patent suit generally only affects damages, limiting the plaintiff to damages based on infringement AFTER the suit was filed. If all the plaintiff is interested in is telling the defendant to stop infringing, laches isn't much of a problem.
Gruber's right about there being two distinct sets of patents Theora has to worry about (basically big companies that are part of MPEG and random other companies/trolls) but he's wrong about whether they are "likely" to infringe either set and wrong about basically everything else he says about patents in general e.g. misusing the term "submarine patents" even though he links to an accurate explanation on Wikipedia, and in their specific relation to Theora and H.264.
For example, why should Theora worry about H.264 patents? Theora is from the previous generation of codecs, which means it is both simpler and older, two very good things when it comes to patents. That's two very good reasons why Theora is less likely to be exposed to random non-MPEG patents than H.264.
If Theora infringes any MPEG patents then it's more likely patents from MPEG-1, 2 and 4 part 2 that they need to worry about. But these are well known and Theora has worked around them.
Thom (of OS News)'s arguments are, as you say, mostly rabble rousing, and probably wrong wherever he gets into specifics, but that doesn't magically make Gruber right.
But this does remind me of a million other tech battles where you have the choice of supporting the plucky underdog or rewarding the source of the actual problem (e.g. people building sites that work on IE6 only) and I think people getting angry, at least as a first step, is a potentially useful strategy.
It's far better that they exist than that they don't. If they didn't, there is a chance that any of the patents in their pool could have been acquired by a patent troll and exploited to even more devastating effect.
Gruber in fact does not appear to be wrong: there are indeed two classes of patents that Theora is exposed to (general but poorly known patents covering modern codecs, and the patents MPEG LA owns). There clearly are codec patents that MPEG LA doesn't own. There clearly are codec patents that they do own. MPEG LA clearly isn't going to sue, in the immediacy, over their own patents.
Meanwhile, it is indeed entirely in MPEG LA's own hands whether or not they will sue over use of Theora. They sure are a bunch of evil jerks. But that changes the facts of the case not one whit. Being upset about MPEG LA's IP position doesn't change what that position is.