The MP3 Patents
The MP3 patents are frequently given as examples for
“positive” software patents. The reasoning is that
the extraordinary effort behind this innovation deserves
protection by a patent.
This article takes the MP3 patents as an example how software
patents harm our economy. In doing so we will see that the
“extraordinary effort” which “deserves
protection” is not real in the MP3 case. In fact, when it
comes to broadness and triviality, the MP3 patents are on the
same level as other software patents like the
progress bar patent by IBM, the
context menu patent by Philips, or the
online gift patent by Amazon.
On the contrary, the harm to our economy caused by the MP3 patents
is even higher and clearly visible.
Protection for an Extensive Innovation?
When looking at the MP3 compression method one has, at first,
reason to be awestruck by the enormous lot of work behind it.
The audio-psychological perception which enables us to drop
systematically parts of the acoustic information is most
certainly based on many years of scientific work. It seems
self-evident that this kind of effort would never have been
financed without the prospect of a 20-year monopoly on its
application, i.e. a patent.
At this point already, let me add the following remarks:
The Fraunhofer-Gesellschaft is a non-profit organisation,
financed to a level of 40% by public revenue.
Scientific research cannot be thought without free exchange of
knowledge. The perceptions of the Fraunhofer-Gesellschaft are
built on those of other scientific organisations.
Anyway, let's adopt that a 20-year monopoly was an adequate
reward for that part of the work done by the
Fraunhofer-Gesellschaft itself. In this case a patent which
protects this effort against third-parties' parallel efforts
might be appropriate.
Unfortunately this is not what the MP3 patents cover.
A glance on the
of one of the MP3 patents reveals the following principal claim:
1. Digital coding process for transmitting and/or storing
acoustic signals, specifially music signals, comprising the
N samples of the acoustic signal are converted into M spectral
said M spectral coefficients are subjected to quantisation at a
after coding by means of an entropic encoder the number of bits
required to represent all the quantized spectral coefficients
when the required number of bits does not correspond to a
specified number of bits quantization and coding are repeated
in subsequent steps, each at a modified quantization level,
until the number of bits required for representation reaches
the specified number of bits, and
additionally to the data bits the required quantization level
is transmitted and/or stored.
All this might sound terribly complicated and technical for a
layman. However its meaning is simply:
First one chooses how much bandwidth/disk storage one wants to
One compresses the music using well-known algorithms (spectral
coefficients, entropic encoder) taking a loss of quality by
simply dropping part of the information (quantization).
One checks whether the result fits in the bandwidth/disk
storage previously chosen. If not, one repeats the compression
with another quality level until it fits.
So the patented idea is not to specify the quality and to get the
size from the algorithm, but to specify the size and to adapt the
Complex Science – Trivial Patents
The psycho-acoustic perception which took many man-years of
world-wide scientific work and many millions of public revenue to
retrieve is not mentioned at all at this point. This only comes
later, in claim 11.
11. Process according to any of Claims 1 to 10, characterized in
that continuously audibility thresholds of quantisation errors
are calculated in accordance with the established findings in
psychoacoustics, and that the spectral values are corrected so
as to preclude the audibility of noise.
Like before, ths patent does not cover a extensive scientific
discovery, but the idea to apply the psycho-acoustic perceptions
– taken as already available – in data compression.
It is a matter of opinion whether to regard this idea as
“ingenious” or “obvious”. Anyway the
patent is not on the fruits of their long-time work, but
on a matter of seconds: a basic idea for
But in fact this consideration is obsolete. In order to infringe
the patent it is not necessary to infringe Claim 11. Claim 1 is
enough to constitute a patent infringement.
There is no trace of extensive scientific work in Claim 1. Every
professional who comes up with an algorithm for music compression
has a high risk to infringe Claim 1.
How can it be that a research institute which has put a lot of
real effort into the development of MP3 does not patent that real
effort, but just trivialities?
One answer reads: for economic reasons. The broader the patent
claim, the more money can be made out of it. If you can ask for
license fees not only from real plagiarists but also from all
those who accidentially came up with the same idea, you make more
Another answer lies in the nature of software development. There
is no need for “protection” of innovative software by
a patent. Copyright and the possibility to separate the source
code from the executable binaries provide perfect means to hide
your know-how against competitors. When a software developer
wants to make profit from a new compression algorithm, he
launches a software library which implements the algorithm
– as fast as possible. A software developer must hurry up
to remain ahead of his competitors. When he waits some years for
a patent application, his corner on the marked will be already
filled by someone else.
On the software market, patents are not appropriate to protect
individual innovations. Instead, they serve as weapons in a
long-time strategy to prevent competition. From this point of
view it makes sense for the patent applicant to file patent
claims as broad and trivial as possible. That way he maximises
the chance that an innovative competitor will unwittingly
infringe these claims.
Non-Trivial Software Patents Are Harmful, Too!
So even the praised MP3 patents are trivial, regardless of the
potentially big efforts behind the development of the algorithm.
But let's assume for the moment that the claims indeed adverted
to the complex parts. Wouldn't they state an incentive to
innovation and thus foster economy?
Even in this case the answer was a clear “no”.
MP3 is far from being the best compression algorithm for music.
Ogg/Vorbis for instance is superior in every respect and it is
not encumbered by patents. Nevertheless MP3 is used much more
than Ogg/Vorbis. Why so?
In the software market, interoperability plays an even more
essential role than it does in other branches of trade. For
instance in automotives it is okay when a spare part for a Ford
does not fit in a car by GM. On the other hand there is no chance
for a multimedia software which can play Ogg/Vorbis but not MP3
to be profitable.
The MP3 patents give Thomson Multimedia and
Fraunhofer-Gesellschaft full control over the world-wide de-facto
standard for music compression. At the moment these
patent-owners are generously forbearing the existence of MP3
playback software which is available for free.
2002 there were some plans to change this. It did no happen
back then, but it can happen any time. An entire sector of
industry is dependent on the good will of the owners of specific
Concerning the recording of MP3 files,
patent owners are taking drastic measures in demanding
license fees for any software which can compress MP3.
This led to the retraction of almost all free and Open-Source MP3
encoders. As the only exception,
LAME has resisted the
legal pressure so far.
In addition the patent owners say that their patents cover the
full spectrum of lossy audio compression, including Ogg/Vorbis.
Whether this is true has yet to be carried out in front of a
Even if there was extensive research and development, the
patents are trivial.
Although there are better alternatives which do not infringe the
patents, the need for interoperability gives the owners of the
patents control over the entire market.
The patent owners selectively exclude specific competitors
– in particular: free and Open-Source software –
from the market.
A company exploiting holes in the law to make profit at the
expense of others cannot be blamed. The problem lies in the
system and can only be solved in the system.
It might be that patents are profitable for their owners. But
they are, for certain, causing economic harm to the software
industry and to society.