A company can take many forms, but the important thing is that it is a separate legal entity. That way the members cannot be sued, and if the organisation is wound up they can lose no more than the amount they put in.
Haiku is a registered trademark and it has value. We wouldn’t want to lose it.
To make it clear, the problematic code is in HaikuPorts anyway, not in Haiku itself. It just happens that currently Haiku inc is providing infrastructure for Haikuports (part of the build servers - the other part is privately paid by one of the Haiku developers I think, and hosting of the repositories).
There is no trademark for HaikuPorts and there is also not a lot of intellectual property - maybe on the patches at the Haikuports repository, but these are copyrighted by their individual authors and not by Haiku inc.
So really, it’s a matter of where these repos are hosted and who pays for it. The Haiku project does not need to be involved with that. Haiku inc currently is, because it was convenient to use an existing legal entity to pay for the hosting of haikuports things. But if it’s needed, transferring haikuports to some other entity would be possible and not cause any problem and little paperwork, if any at all. Maybe the haikuports.org domain, but that isn’t used at all at the moment.
For Haiku itself, I see no need to change the current organization.
HaikuPorts 
MacPorts not owned by Apple.
Another alternative is … simply using things that are not encumbered by software patents, like AV1.
I know no alternative to h264 that can compress high resolution video in realtime and in software.
I would do as the linux distros do, keeping the codec excluded from the project and people download it separately.
Re:Software Video codecs
Android supports Ogg Theora as does FireFox. It doesn’t compress quite as well as h.264 and is more processor heavy because hardware acceleration on ARM controllers don’t support it. The fact that the Ogg container is a patent encumbered container (though by accident) which prompted Google to build the VP8 container of their own. I wouldn’t like to be dependent on codecs that only Google uses though.
The best way is to do as ffmpeg suggests: we cannot know if we actually step on any patents until someone shows one to us. The specification for h264 only has vague threats that there might be someone who owns patents. This is very far from “omg that’s obviously illegal”.
Also note that h.264 was normalized in 2003, with work started in 1998, which means that any patent is already expired or about to expire (they only last for 20 years). We may just wait a year or two and the issue will solve itself.
More like 6 years - h.264 has at least two essential patents covering it which are not scheduled to expire until 2027:
It would be good if you did the legwork here to point out the exact patents which are the issues, reading that wiki is a bit of a mess. Depending on how central the covered works/material? are they might be able to just omit it at the expense of certain features.
In any case, I think your proposed solution is a bit extreme. Besides, while it might be nice for some people it would still leave the issue of anyone in the USA not being able to use those features and creating the perception that they are not a core part of Haiku.
If the USA has laws that prevent people who live there from using and distributing software, there is not much we can do about it on Haiku side. I think there are several nonprofit organizations trying to change that, and you could support them if you are worried about it. Or maybe, as a more extreme solution, consider moving to a country with less stupid laws. Or you can also say that this is fine and that Haiku should pay money to the MPEG association to be allowed to use the patented code, without even being sure if the patents apply at all (the MPEG association makes it very unclear what their patent cover exactly, that’s on purpose, then they can ask people to pay just to be safe even if they don’t actually use any code covered by the patents).
Or maybe, as a more extreme solution, consider moving to a country with less stupid laws.
I’m not sure they’re stupid, necessarily, just inconvenient and sometimes expensive. The real problem would appear to be the predatory behavior of the MPEG association.
Or you can also say that this is fine and that Haiku should pay money to the MPEG association to be allowed to use the patented code, without even being sure if the patents apply at all (the MPEG association makes it very unclear what their patent cover exactly, that’s on purpose, then they can ask people to pay just to be safe even if they don’t actually use any code covered by the patents).
I’m not suggesting that Haiku should pay the MPEG association either.
If the USA has laws that prevent people who live there from using and distributing software, there is not much we can do about it on Haiku side. I think there are several nonprofit organizations trying to change that, and you could support them if you are worried about it.
Since I apparently wasn’t clear enough before:
I am not suggesting that you do anything specifically on the Haiku side. I’m merely saying that it makes no sense to arbitrarily alienate or divide the Haiku community over an issue like this when it comes to releasing official builds/downloads. It’s not exactly a finished, production-ready OS despite large strides made in that direction.
Note that it is not just the USA. Evidently MPEG LA holders have had lawsuits ruled in their favor in Germany as well: FOSS Patents: TCL takes MPEG LA's AVC/H.264 license just before Dusseldorf trials in patent infringement litigation brought by NEC, Panasonic, IP Bridge
To quote from that site: “MPEG LA has a track record of victories in Dusseldorf.”
“The Dusseldorf court would have held trials pretty soon, but TCL folded.”
This is not a lawsuit ruled in their favor. This is a company deciding that defending themselves in a lawsuit isn’t worth it and just paying the fees that MPEG LA requested.
Moreover, the situation is a bit different, because the law in EU does not allow patents to be applied on pure software (basically, patenting an algorithm), but it can be applied on combination of software and hardware, for example (otherwise, any patent where the device includes some microcontroller or processor would become invalid). This creates some uncertainity if you manufacture or sell set top boxes or handheld mp3 players, but not if you just make an operating system (clearly that is only and exclusively software). See Software patents under the European Patent Convention - Wikipedia for some details about it and the variants in different countries.
Fair enough about the hardware/software distinction, but if you had read further you might take more notice of the quote that I highlighted - one of the reasons TCL folded was that MPEG LA already had a track record of rulings in their favor.
Digging further, here is an example of that: Another win for MPEG LA - JUVE Patent
In other words, the patent held up in court in Germany, so my guess is that there is a very high probability that the equivalent patents would hold up in other countries, including those where software patents are (sadly) upheld.
My own recommendation is to provide a general framework for video playback/recording and use the translator kit to handle the actual codecs, then since some countries would allow such a translator to be distributed without needing to pay MPEG LA or the licensors, have it available as a separate download for use in those countries, just as a translator that could be dropped in place.
I don’t think we should restrict what everyone can use just because the laws in one or two countries are too restrictive. Also, we still don’t know if we are using any patented code (no one seems to have told ffmpeg developers what they are allowed to do or not, so far). So doing this because “there may or may not be some patents applicable, we don’t know” is nonsense. Let’s wait and see if MPEG LA has a specific list of patents we are infringing, then we can see what can be done about it. It’s their job to protect their own patents, it is not our job to do the research for them.
In my opinion this approach is the best.
It should be noted that I kept all of our servers and infrastructure outside of the US on purpose. It offers us some legal redundancy no matter what happens in the US or EU.
Better to ask forgiveness than live on ones knees awaiting permission