The false dichotomy is exactly as he said: that one or the other has to be infringing on the other.
As to your point, h264 has been on the market for a while now and is implemented by some seriously deep pockets. If you were the captain of the submarine patent ship, you would probably have fired the torpedos by now. If you're a new company, you'll feel pretty safe standing with Apple and all of the other MPEG licensees who have a vested interest in fighting. This is not the case with WebM.
As to your point, h264 has been on the market for a while now and is implemented by some seriously deep pockets. If you were the captain of the submarine patent ship, you would probably have fired the torpedos by now. If you're a new company, you'll feel pretty safe standing with Apple and all of the other MPEG licensees who have a vested interest in fighting. This is not the case with WebM.