why? the encoders / decoders can still be OSS, and you can use h264 for free for personal use. Even if you won't be allowed to do this in the future, the rest of the toolchain can always be used with another standard.
I was not aware it could be distributed for free. That's why many Linux distros don't include it on the base install, but allow it for download in countries with sane patent systems.
Who's claiming that it's "open-source". They're only claiming that it's an open standard. That just means that they'll tell you how it works. Not provide code or anything else. Nor does it imply that it's royalty free.