All the definitions I can find for "proprietary" allow patented inventions to fall under them. Standardizing and documenting an algorithm or protocol does not allow developers to use it freely and without royalty.
In this case, I believe Chris' terminology is correct. You are instead describing the difference between closed- and open-source.
For x264, an implementation of H.264, it is an open source implementation of a proprietary algorithm. In Theora's case, it is open source implementation of a free (as in libre) algorithm. RealVideo is a closed-source implementation of a proprietary algorithm.
How is an algorithm proprietary if I can go online to the website of the ITU, a division of the United Nations, and download a copy of the standard and go write my own implementation?
ffmpeg's reverse-engineered Real Video decoder is an open-source implementation of a proprietary specification. Depending on the country and legal interpretation, the mere existence of this is illegal.
ffmpeg's H.264 decoder is an open-source implementation of a patented, but not proprietary, specification.
ffmpeg's Theora decoder is an open-source implementation of a probably-not-patented specification.
If a definition doesn't distinguish between something freely available for all to view/implement and something which cannot even be implemented without potentially falling afoul of copyright laws and the DMCA, it isn't a very good definition.
You can implement it, but you are not free to distribute your implementation in binary form, and users are not free to use your algorithm without the consent of the patent holders. That is the definition of proprietary. Regardless of the availability of the specification and full, compliant implementations, you are not free to distribute this code in the United States of America.
Microsoft has a patent on the openly-spec'd FAT filesystem and are still pursuing royalty agreements with distributors of FAT code:
If software patents were removed from the picture in the USA, H.264 would cease to be a proprietary algorithm.
Edit: I'm updating this because the reply markers are slowed down to flamewar levels. :)
Re: consent of the patent holders, this is guaranteed by the MPEG LA but only in return for royalties paid. You need their permission, which is granted only by paying the royalty.
users are not free to use your algorithm without the consent of the patent holders.
This is not true. The patent holders signed an agreement when creating the standard that requires them to license to you under reasonable terms. As far as I know, they cannot refuse. This is how the process is carried out for many international standards: nobody wants to risk one of the patent holders going rogue.
This is in contrast to something like FAT, which was created by Microsoft, for Microsoft, and is controlled entirely by Microsoft.
Quite honestly, I think many of the companies involved would welcome the end of software patents. The amount of legal wrangling they go through in order to avoid legal problems is tremendous, and for H.264, the fee is a mere 10 cents per unit for bulk licensing with a relatively low cap. Hardly enough income for them, IMO, to justify the hassle created by software patents.
Not all standards bodies require RAND terms, and not all RAND terms are 'reasonable' for individuals. You have to look into each standard and then to the assigned licensing agencies and what they charge for.
In the case of H264, the patent pool is licensed by MPEG-LA, and they're anything but free.
Here's the overview of the broadcast licensing terms:
How is an algorithm proprietary if I can go online to the website of the ITU, a division of the United Nations, and download a copy of the standard and go write my own implementation?
Simple: your understanding of the definition of "proprietary" is incorrect. Keeping a technology secret is a sufficient -- but not necessary -- condition of it being proprietary.
Actually this is a case of mixing up "IP" laws ... trade secrets are very different from patents, although patents were partly introduced to encourage companies to open up and to discourage the use of trade secrets.
Anyway ... "proprietary" means just what it says ... "exclusively owned by someone" under a trademark, patent or as a trade secret. So to say that H.264 is proprietary is actually correct.
On the other hand, H.264 is more open than Real Video, since you can get the specs of the format, an implementation is already available to you and the patents are currently reasonably licensed.
That said, the concerns of Mozilla are valid ... we could end up in the same situation as with GIF and MP3 ... although I don't think Theora has any chances to take over since it's technically inferior and H.264 is already accepted as a defacto standard (mostly because of Flash).
Well, sure, you could say there are different degrees of "proprietary," but there's really only one "open":
1. Secret spec, patent-encumbered
2. Secret spec, patent-free
3. Open spec, patent-encumbered
4. Open spec, patent-free
You can of course expand that out to include other criteria, but... you get the idea.
I'd argue that #4 is the only one that's really "open," though a case could be made that #3 is both open and proprietary rather than simply proprietary.
Of course there are those who believe #4 isn't really feasible and that some patent somewhere can apply to basically everything... even if the patent holder doesn't know it.
Under this definition, what happens when Theora gets enough acceptance that one of the major patent holders investigates and determines that it incorporates something they've patented - do we suddenly start calling it proprietary or do we describe it the same way we would describe H.264: "open [or closed] source implementation of a standard algorithm which has patent restrictions in some countries"
Theora is based on VP3 (with few and documented modifications) just like VP6 which has been in used on youtube for years. So if theora is infringing any patents, so is VP3 and therefor VP6. In other words, if I had any patents on VP6/VP3/theora I would be suing the hell out of youtube and everybody else. Why would I wait for theora to be mainstream? Doesn't make sense.
YouTube was't an attractive target before Google bought them (no money). Now they are but they're using H.264 and presumably a full licensed toolchain for it, defended by a lot of industry players in addition to Google's deep pockets.
I hope that the VP3 heritage is truly patent free but right now it's hard to say anything is patent-safe given the wretched state of our industry. Theora, in contrast, is not defended by anyone powerful and thus far hasn't been worth going after; if it starts to get accepted I'd be surprised if one of the trolls didn't try for danegeld.
Youtube never used VP6. They became a internet giant using an even older and crappier proprietary codec and even today H.264 fans will tell you that their encoding using that codec are crappy. I think there's a lesson there, but I'm not sure what it is.
VP6 is supported by Adobe Flash, so they and various others could have been sued though, so your basic point stands.
Checking this out on Wikipedia, I was surprised by how many sites I'd heard of weren't using H.264, but VP6 instead, I'm guessing for royalty reasons that don't apply to the big pockets of Google:
One example of many from define:proprietary:
http://wordnetweb.princeton.edu/perl/webwn?o2=&o0=1&...
In this case, I believe Chris' terminology is correct. You are instead describing the difference between closed- and open-source.
For x264, an implementation of H.264, it is an open source implementation of a proprietary algorithm. In Theora's case, it is open source implementation of a free (as in libre) algorithm. RealVideo is a closed-source implementation of a proprietary algorithm.