On Friday, the United States Patent Office trashed key elements of the so-called "podcasting patent," the result of a series of petitions submitted by the Electronic Frontier Foundation against what the organization describes as a classic case of patent trolling. So ends the first chapter in an ugly saga pitting a Texas holding company against any and all who dare to provide serialized content via the internet.
To hear the proprietors of Personal Audio, LLC tell it, the birth of podcasting took place in 1996 in the city of Beaumont, Texas. There were no iPods then and acquiring media via the internet was a chore disguised as a novelty, but the "inventors" Jim Logan, Dan Goessling, and Charles Call saw the future: "a mission of offering personalized audio to listeners over the Internet." The rest is history—except, not really.
What Personal Audio actually built was a patent application, resulting in patent no. 8,112,504 B2: "System for disseminating media content representing episodes in a serialized sequence." What came next was a whole lot of nothing. In the words of Personal Audio vice president of licensing Richard Baker, it was placed in a drawer for 10 years. The technology went unrealized, with Personal Audio's founders claiming to have run out of money before being able to actually do anything with the idea.
Unfortunately, our work to protect podcasting is not done.
Indeed, the Electronic Frontier Foundation considers Personal Audio to be the very definition of a patent troll: an entity that holds an idea hostage until someone else decides to make something like it and then sues the shit out of them. Trolling is a massive and rapidly growing mutation of US patent law—by 2012, nearly 40 percent of all patent litigation centered around the actions of trolls or non-practicing entities (NPEs), organizations that exist entirely to monetize patents through lawsuits and threats of lawsuits against those deemed to have infringed on a patent.
Personal Audio has had some success with the strategy. In a rare case of an NPE succeeding at trial—because most troll cases going that far fail, most of the money in patent litigation comes via settlements—PA won $8 million from Apple in 2011, albeit $8 million of an $84 million lawsuit. Perhaps sensing blood in the water, PA immediately sued Apple again, but this time a US District judge threw the suit out, finding that the earlier victory covered all past and future use of PA technology.
Things started really heating up again in 2013, when Personal Audio began going after podcasters themselves, demanding licensing fees from Adam Corolla and three major television networks. Corolla and PA settled eventually, but the EFF took on the task of finishing the job. In its Patent Office petitions, the org. argued (successfully) that Personal Audio hadn't actually created anything new before filing its original podcasting patent, while serialized content had by then already been available via Internet pioneer Carl Malamud's "Geek of the Week" online radio show and online broadcasts by CNN and the Canadian Broadcasting Corporation.
"Unfortunately, our work to protect podcasting is not done," notes EFF attorney Vera Ranieri. "Personal Audio continues to seek patents related to podcasting. We will continue to fight for podcasters, and we hope the Patent Office does not give them any more weapons to shake down small podcasters."