Last week, Google announced an “open and free” video format, VP8, with the goal of creating a video standard that anyone can use without paying royalties. That seems unlikely, however, if you believe recent statements by Steve Jobs and the company implicated in potentially shackling VP8 developers with licensing fees justified by multiple patents on the underlying technologies.

Here’s Jobs’s note, in full, from before the announcement by Google:

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From: Steve Jobs

To: Hugo Roy

Subject: Re: Open letter to Steve Jobs: Thoughts on Flash

Date: Fri, 30 Apr 2010 06:21:17 -0700

All video codecs are covered by patents. A patent pool is being assembled to go after Theora and other “open source” codecs now. Unfortunately, just because something is open source, it doesn’t mean or guarantee that it doesn’t infringe on others patents. An open standard is different from being royalty free or open source.

Sent from my iPad

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While Theora, a pre-existing open source standard, isn’t the same thing as VP8, an in-depth technical analysis of VP8 concludes that the two have a great deal in common.

Larry Horn, CEO of MPEG LA, the industry consortium / patent pool-holding firm that already collects licensing fees on the h.264 codec, confirmed that his company was forming a pool of patents related to VP8.

The notion that any technology companies hold any patents that cover the technology behind VP8 runs directly counter to statements made by Google product manager Mike Jazayeri, who told The Register “We have done a pretty through analysis of VP8 and On2 Technologies prior to the acquisition and since then, and we are very confident with the technology and that’s why we’re open sourcing.”

The problem for Google and VP8 is that it may not even matter who turns out to be the victor of this verbal fencing match: if developers or investors are convinced there’s even a possibility that apps or services that use VP8 might eventually be liable for licensing fees (or legal damages) owed to MPEG LA, that alone could force them to either pay up or bow out of using the standard all together.

Google has the resources to fight any industry consortium in court, and it might just get the chance, as the company has declared that it will make all of YouTube available in VP8. But, as John Paczkowski pointed out, unless it’s ready to indemnify everyone else who uses the standard against future licensing or legal fees, its claim that VP8 is not only open source but free to use may prove meaningless.