Steve Jobs has certainly gotten a lot chattier and a lot feistier since he got a new liver.

Right after he went public the other day with all the reasons why Adobe Flash sucks and why Apple wouldn’t touch it with a 10-foot barge poll – an item the commentariat lavished billions of pixels on – he told the assistant on policy matters to the president of the Free Software Foundation Europe Hugo Roy to expect patent holders to “go after” the open source video codec Theora and its ilk for infringement.

This in the same week that cops tossed a blogger’s home office in search of evidence about an iPhone prototype that Apple reported stolen after it came into said blogger’s possession, raising another ruckus.

What Mr. Jobs said exactly (from his iPad of course) was:

“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.”

Mr. Roy, who by the way is studying political science but apparently not diplomacy at a school in Paris, took it upon himself to lecture Mr. Jobs on what an open standard is in a snide and smarmy open letter he wrote and forwarded to Jobs as a comment on Steve’s Adobe statement.

Steve – and everybody’s pretty sure from the headers in the e-mail that it’s the real Steve Jobs although Apple hasn’t confirmed it – was responding to Hugo’s wishful FOSS thinking – shared by the European Commission and at least some of Europe’s socialist governments – that an open standard has to be legally unencumbered.

Hugo brought it up in the context of H.264, a de facto standard that Apple prefers to Flash:

“It is true,” Hugo wrote in his letter, “that HTML5 is an emerging open standard, and I am glad that you adopted it (well, did you really have the choice anyway?). However I have to say I am impressed in the way you succeed in saying how Apple has been doing great with open standards against Flash… while explaining Flash videos is not a problem, because Apple has implemented another video codec: H.264.

“May I remind you that H.264 is not an open standard? This video codec is covered by patents, and ‘vendors and commercial users of products which make use of H.264/AVC are expected to pay patent licensing royalties for the patented technology’ (ref). This is why Mozilla Firefox and Opera have not adopted this video codec for their HTML5 implementation, and decided to chose [sic] Theora as a sustainable and open alternative.”

Just how “sustainable” apparently remains to be seen.

Steve isn’t very clear about that patent pool that’s supposedly going to “go after” Theora et al but one might assume that it’s the already existing patent pool at MPEG LA, the entity that licenses H.264, or a splinter group of that organization.

Twenty-six companies in the United States, Europe and Asia have a patent interest in H.264, including Apple, Microsoft, Dolby, France Telecom, Fujitsu, Hitachi, Philips, LG, Mitsubishi, NTT, Bosch, Scientific-Atlanta and Columbia University.

It takes 45 pages just to list the numbers of the international patents that touch on it. Even at one to a line, statistically the odds are Theora’s got a problem somewhere.

There are 811 H.246 licensees including Google and the ever-practical Canonical. And Microsoft has just said that it will only support H.246 in IE 9.

Since last August Google, however, has also owned On2 Technologies, whose VP6 widgetry is underneath the ubiquitous Flash video and whose older VP3 codec – subsequently enhanced and replaced – underlies Theora, which is financially support by Google and Mozilla. And On2 has been working on a Theora displacer called VP8, reputed to be the performance-equivalent of H.264 if not better.

It is widely assumed Google may open source VP8 in an effort to standardize web video perhaps in a couple of weeks at the Google I/O conference. So Jobs’ reference to “other open source codecs” may have On2 and Google in mind. Apple is, after all, suing HTC, makers of Google Nexus One phone, claiming Android treads on a bunch of its patents.

This codec thing is a fight that’s been brewing for a long time.

According to Monty Montgomery of Xiph.org, the group behind Theora, “The MPEG-LA has insinuated for some time that it is impossible to build any video codec without infringing on at least some of their patents. That is, they assert they have a monopoly on all digital video compression technology, period, and it is illegal to even attempt to compete with them. Of course, they’ve been careful not to say quite exactly that.

“If Jobs’s email is genuine, this is a powerful public gaffe (‘All video codecs are covered by patents.’) He’d be confirming MPEG’s assertion in plain language anyone can understand. It would only strengthen the pushback against software patents and add to Apple’s increasing PR mess. Macbooks and iPads may be pretty sweet, but creative individuals don’t really like to give their business to jackbooted thugs.”

A month ago MPEG LA VP, licensing and business development Larry Horn told StreamingMedia.com pretty much the same thing. “No one in the market should be under the misimpression that other codecs such as Theora are patent-free.”

The point is the emerging HTML 5 standard lacks a fixed video codec and both sides have been jockeying to get their horse qualified. Other than doubts about Theora’s real compression strengths, the patent issue has been the main stumbling block.

First see here and then here, which indicates it really is from Steve. We asked Apple on Friday to authenticate it but they never answered the e-mail. Presumably they saw the movie “Man for All Seasons.” As Thomas More said, “Silence is consent.”