MP3 patent issues?

Michael Torrie torriem at
Wed Aug 3 14:15:38 MDT 2005

On Wed, 2005-08-03 at 13:16 -0600, Kenneth Burgener wrote:
> There is nothing simple about this issue at all.  Patents are NEVER 
> simple, which is why I came here looking for good resources, and advice.

You're going to the wrong place for legal advice, especially for a
company or business.
> The first problem I noticed is that there are more then 1 group that 
> holds patents on different parts of the MP3 encoding.  So just because 
> you say you need a license, doesn't mean anything helpful as each group 
> has their own sets of rules, licenses and royalties.
> So if we get the wrong license from the wrong company we are still held 
> liable if we didn't cover the other groups patents as well.  And from 
> reading the patent laws, ignorance is never a workable excuse.  In fact 
> ignorance gets you fined at one level, and willful violation is fined at 
> a different level.

Buying a commercial MP3 package should indemnify you.  If you did get
sued, you can most likely transfer the liability to the company you
purchased the product from, which you did in good faith.  If you use an
OSS product, knowing full well that it violates the patents, you have no
way of mitigating risk since you and only you are responsible for the
patent infringement, or so I've been led to believe.  Talk to your
lawyer and have all aspects of this investigated if you feel the risk
warrants that for your company.  

If you did not know that an OSS program violated a patent and you used
it, you are still violating the patent.  If you are caught you would be
asked to stop (that's probably the limit), unless using this patent
helped generate revenue for you in which case they (the holders of the
patents) could sue you for damages.

> You assume that because it is in a business environment, then it is a 
> requirement to buy a licensed encoder?  What if we are using the MP3 
> encoding for in house use only, where no direct revenue will be made 
> from it.  Does this fall under "personal use"?  If no revenue is being 
> made does this fall under the non-business use case

What you do for your own personal use is your own business, illegal or
not.  It's a matter of risk management.  As a business your profile is
greater and thus infringing a patent brings with it greater risk and
liability.  On a personal level if you find the risk and liability
acceptable than by all means proceed.  I would guess that most of us
continue to listen to and make mp3s for personal use despite the fact
that we are violating the mp3 patents.

I assume from your messages that you wish to use mp3 in a commercial
setting.  If this is worrisome to you, and you don't want to pay the
price to get legal access to mp3 encoding technology, then you should
consult your lawyer and then proceed as you think best.  Heaven knows
the plug list and slashdot are places to not ask for legal advice.  

> The next question to you is this, why do we need to use the "patented" 
> MP3 encoder.  I may be completely wrong on this, but according to one 
> site, LameMP3 does not use the ISO code for encoding.  If they use a 
> different breed of encoding to come up with an MP3 file, is it a patent 
> violation to use a competing algorithm?

I've always understood that LAME actually used the ISO code verbatim in
it, but I could be wrong.  Regardless, LAME implementes the patented mp3
algorithms themselves which are the things that are patented.  The ISO
code is merely an implementation of the algorithm.  If you used an
algorithm that was not the same as the one implemented by the ISO
standard then you have something that is not mp3.  You are free to use a
competing algorithm, such as the algorithm used by the vorbis codec (ogg
vorbis files), which has no known patents covering it, but vorbis is not
mp3 obviously.  

> The next question is, let's say that we do need to get a "licensed" and 
> approved encoder.  Do we have to pay royalties on EVERY MP3 that we 
> encode, or are the royalties for each MP3 covered with the encoder's 
> license.

It all depends.  Check the terms of use of the software packages.  Ask
them what kind of end user encoder license is granted (sub-licensed?) to
you through their software. 

> As I said, it is NEVER simple when dealing with patents, nor the law for 
> that matter.  I really am astonished that companies flourish at all with 
> all the crap and legality that gets kicked at them.

I agree.  Eventually the entire software industry will be brought to its
needs by fear of litigation, etc.

> I have sent an email to the primary patent holders looking for more 
> information on this as well.  Hopefully they give me a straight answer.

Good luck.

> Kenneth
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Michael Torrie <torriem at>

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