Yes, you could argue that. But why should a standard be allowed to mandate that a closed-source codec with exorbitant licensing fees be implemented when freely available alternatives exist?
If all the codecs are unacceptable to someone (and a standard has to have support from multiple implementors to qualify as a standard-- a "standard" on paper implemented by only one entity isn't really a standard), the only solution is to not specify the
codec. That's what happened here.
Another any interesting thing about the license fees, the $5 million per year cap only applies in 2010. MPEG LA reserves the right to raise this license fee in future years. Also, MPEG LA doesn't currently charge for websites serving H.264 content, but they
will begin charging license fees for this in 2010. Meaning if you have a website that servs up H.264 (channel 9?) you will have to get a separate license. They haven't decided how much they will charge. But chances are, as with everything MPEG LA apparently,
this won't be inexpensive. This could affect tens of thousands of businesses and individuals, and many more if HTML5 used H.264 exclusively.
Basically I view H.264 is useless as a video format for all but the biggest conglomerates who make billions of dollars and quickly hit the royalty cap, which as of now $5 mill is still petty cash for them. Notice that's why Apple and Google can live with
H.264, they are both huge companies who use H.264 all over the place and probably pay the flat fee and are done with it. Apple also receives royalties from the MPEG LA, so they have a vested interest in the format.
If H.264 starts getting more adoption, and basically even medium sized companies will require to buy expensive licenses to H.264 to be competitive. If people become "addicted" to H.264, suddenly, MPEG LA more incentive to raise their license fees to almost
a government income tax type level.
It could basically ruin the Internet, hurt mostly small business and individuals, which so far thrived on Internet IMO because it's an open access medium unlike TV.