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Even more about audio licenses on the web

by Ashley | 21st, December 2011

This is now our fourth blog post about audio on the web (one, two, three). We may be risking beating a dead horse, but we do need to clarify an important point from our last entry: it is true games with 5000 distributions require a $2500 MP3 license. However, we've been in touch with MP3 licensing and they have said the license is only applicable if the MP3 files are available separately. If you let Flash combine everything in to a single .swf it therefore avoids separate MP3 files, making the license unnecessary for Flash games. Sorry if we gave any Flash developers a fright! (If you use external MP3s though, you still fall under the license!)

We also heard rumour of some special deal Adobe have with the MP3 license. We called Adobe and they told us no such deal exists. SWF is exempt under the MP3 license rules, so perhaps this was mistaken for a "special arrangement".

HTML5 games, on the other hand, are not exempt from this since they do use separate MP3 files. So you do have to be really careful about using MP3 in HTML5 games. MP3 licensing also clarified some of the points about using MP3 in games for us:

  1. The '5000 distributions' is counted by users. So you probably want to measure unique IPs or similar, even though that is not a perfect metric.
  2. A partial download does not count. So if someone quits your game at 90% loaded, it doesn't count.
  3. Even if the user is using a browser that doesn't use the MP3 files (e.g. Chrome or Firefox, which download the Ogg files instead), it still counts as a distribution!

Unless you're willing to pay the $2500 fee, we strongly recommend using MPEG-4 AAC instead. Via Licensing, who handle the AAC license, have the following FAQ on their site to clarify this:

Are there use fees for AAC?
No. License fees are due on the sale of encoders and/or decoders only. There are no patent license fees due on the distribution of bit-stream encoded in AAC, whether such bit-streams are broadcast, streamed over a network, or provided on physical media.”

In other words, game developers don't need to worry about AAC licenses at all. It's only those dealing with AAC encoders and decoders that need to worry about it, and that's the problem of whoever distributes the encoders/decoders. So, clearly AAC is far better for games than MP3! And this is why we don't support MP3 at all in Construct 2.

Isn't this complicated?

However, like MP3, AAC is still a patent-encumbered format. This means Via Licensing could change their mind about the state of affairs in future. Let's hope they don't. Also, it makes things complicated for us, because Construct 2 can encode AAC files and therefore we're applicable to the license. We've worked around this by using Windows 7's built-in AAC encoder, but it's a pretty basic encoder, and obviously this leaves XP and Vista users having to find their own encoders. Also, Windows 7's encoder doesn't take full advantage of the AAC format, so the files it makes sound worse and have larger filesizes than the Ogg Vorbis files (which, of course, is a free format). So Internet Explorer and Safari users will suffer poorer sound quality and slower download rates than users on other browsers. We could get a better AAC encoder, but then we need to sort out the licensing which could end up being expensive for a cash-strapped startup, and we don't feel like it's worth the cost when Ogg Vorbis performs excellently and is free.

I think it's interesting we've written so much on these patent-encumbered formats because they're so complicated. On the other hand, the rules for Ogg Vorbis can be fully summed up as thus: it is free for everyone. Isn't that nice and simple? Ogg Vorbis is the ideal format for the web, but Internet Explorer and Safari insist on complicating matters for web developers all over the world with their patented formats. This stems from a big war over video formats, which is much bigger fish. However I think it's an interesting indicator of who really has the best interests of the web at heart. To recap, Chrome, Firefox and Opera all support Ogg Vorbis. Apple and Microsoft's browsers don't, even though it is a completely free format and they could implement it without asking anyone right now if they wanted to, but they insist against doing that.


Ogg Vorbis is high quality, compresses well, and is free for everyone to use - even for us to encode. MP3 is too expensive for most independent developers to even consider for HTML5 games or externally with Flash, but Flash SWF files are exempt. AAC is free for HTML5 games, but still patent-encumbered, and would be unnecessary if all browsers just supported the free Ogg Vorbis format. However, AAC is free so we can all continue to use it for the time being anyway. Construct 2 takes care of the dual encoding problem for you (so long as you're on Windows 7) and prevents you from using MP3, so you're never at risk of surprise fees when making games with Construct 2. We hope that finally clears everything up!

Disclaimer: if you're in any doubt, please do seek your own advice about this - we don't make any claim that the information in this blog post is entirely accurate or applicable to your circumstances.

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pkeod 3,565 rep

Using MP3 with Flash is kind of obligatory. I would use Ogg if I it was convenient.

Wednesday, December 21, 2011 at 6:17:37 PM
zenox98 62.2k rep

I just don't understand why more developers don't follow your example and try to add more pressure on Apple and Microsoft to implement Ogg.

Madness :(

Wednesday, December 21, 2011 at 9:04:46 PM
TiAm 9,732 rep

Aside from being sickened by this morass of dysfunctional legalese, another thought comes to mind: why not support a number of external AAC encoders, and have users download whichever encoder they perfer. I know it's a little awkward, but for someone going to the trouble of making a game, it's a pretty small inconvenience. FYI, this is the way most applications work with the mp3 codec, by supporting it, but making the users actually install the codec -- often LAME.

Thursday, December 22, 2011 at 2:08:01 AM
charlieman 2,347 rep

Maybe a workaround could be using an embedded swf file to play ogg on IE and Safari? Although it sounds like a medicine worse than the disease...

Thursday, December 22, 2011 at 12:35:32 PM
Bigheti 17.3k rep

Thanks for the tips Ashley. It's good to know the laws about the MP3 and be aware about them and their implications in our games created.
The great neglect of Apple and Microsoft to consumers is similar to Henry Ford when asked which car color consumers could buy ? His answer was "Any color car, provided it is in black color."
As developers we can hit the use of AAC and Ogg Vorbis. But, while the consumer is "cheated" with marketing tricks and not "wake up" to reality ... we will continue to have the technological empires in a few hands ... and Internet Explorer as the most used around the world!

Thursday, December 22, 2011 at 1:47:39 PM
LaDestitute 19.8k rep

I feel such an issue feels just like the work of evolution. Browsers like Safari and IE must update so they can support OOG, or be left in the dust like the dinosaurs.

Thursday, December 22, 2011 at 7:16:08 PM
Robbie33 1,439 rep

All mp3 patents apply to processes and methods like encoding, decoding and transmission (mp3 was developed for TV signals).
In most games the audio player is part of the game an thus requires licensing. However in HTML5 audio the browser is te audio player. All the patented technology is in the browser (or the media framework used by the browser).

So allthough games with mp3 in general might require a patent license, HTML5 games themselves do not require a license.

Gamedevelopers do of coure require a (copyright) license for distributing the music from a record company or the independ musicians.

Saturday, January 21, 2012 at 4:13:50 PM
Ashley 199.8k rep

@Robbie33 that's not true, you should read our other blog posts on the subject, the MP3 license definitely requires royalties to *distribute* MP3 files and that's what makes it so bad!

Saturday, January 21, 2012 at 4:17:52 PM
Robbie33 1,439 rep

In HTML5 distribution is not via an audio signal transmission but trough straightforward filedistribution by a webserver.
Certainly you are not claiming that MP3 patents claim to have patented the basics of the webservers filedistribution.

Saturday, January 21, 2012 at 7:44:23 PM
Ashley 199.8k rep

@Robbie33 no, obviously not, but with patented technology they can set the license terms for use however they want, and they have set a license that introduces fees for merely distributing MP3 content. You should read their own website, it says that.

Sunday, January 22, 2012 at 1:32:15 AM
Robbie33 1,439 rep

Actually you can't set license terms on whatever you want. If a MP3 file is created using a licensed encoder than all creation rights (encoding compression storage schema) on that file are exhausted.

If someone else uses that file on a webserver without involving any mp3 related technolgy but only trough webserver file distribution there is no mp3 realted technolgy involved in that.

I read their website. It is ambiguous. That is because they want to sell more licenses. They benefit from the most widely interpretation of their patents. They are hardly going to say on their site that filedistribution of mp3's or anything else does not fall in te scope of their patents.

Sunday, January 22, 2012 at 8:31:35 PM
Ashley 199.8k rep

@Robbie33 we emailed them specifically asking them to clarify the ambiguity, and they stated the conditions in the blog post above. It's up to you: risk it with MP3 and possibly have to pay $2500, or use AAC or Ogg.

Sunday, January 22, 2012 at 8:49:13 PM
Robbie33 1,439 rep

I can't see in te above blogpost what you asked and what they answered.

Did you ask them what patents of their patent pool apply to delivering a mp3 file using a webserver?

Monday, January 23, 2012 at 5:45:48 PM
Ashley 199.8k rep

@Robbie33 They told us the three points listed in the post (e.g. partial does not count). Are you suggesting it is not legal for them to set these terms?

Monday, January 23, 2012 at 8:26:25 PM
Robbie33 1,439 rep

Ashley, they can set what ever terms they want. They sell a product
You do not have to buy their product.

You should have asked them what patented mp3 technologie is used by webservers in filedistribution?

The file already exist on the webserver and no mp3 related technology is used untill it is decoded and played by the browser. Let alone patenend technology.

The html5 game itself does not contain any proces or method to decode or play the audio in the mp3 file. That is all done by the browser (or media framework used by the browser)

Monday, January 23, 2012 at 10:04:23 PM

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