Podcasting Patent Troll Realizes Podcasters Don't Make Any Money; Desperately Tries To Escape Adam Carolla Lawsuit

from the good-luck-with-that dept

Remember Personal Audio? That’s the ridiculous company claiming to hold a patent (US Patent 8,112,504) which it believes covers podcasting. The company has been involved in a variety of dirty tricks, including trying to intimidate donors to an EFF campaign to invalidate the patent. Also, unlike most patent trolls, the folks behind Personal Audio have actually been willing to talk to the press and make themselves look incredibly foolish in the process.

The company’s original patent lawsuits against podcasters were directed at Adam Carolla, HowStuffWorks and Togi Entertainment. The company chose poorly. Carolla isn’t exactly one to back down from a bully, and kicked off a big crowdfunding campaign to “save podcasting,” roping in a bunch of other podcasters to alert their audiences as well. The campaign has raised almost half a million dollars.

It appears that Personal Audio is trying to call uncle and get out of the whole thing, claiming that now that discovery has been done, it’s learned how little podcasters actually make. So it’s dropped the lawsuits against Togi and HowStuffWorks and wants to do the same for Carolla, but he won’t let them:

Personal Audio, the pioneers in personalized media solutions, this month offered to dismiss Adam Carolla (and his podcasting company, Lotzi Digital, Inc.) from its highly publicized patent infringement lawsuit. In May and June of this year, Personal Audio dismissed Togi Net and How Stuff Works, the other podcasting defendants, from the same lawsuit. The offer made by Personal Audio, however, to dismiss Adam Carolla has now been rejected by the comedian. Furthermore, his agents have indicated that he will continue to raise money through FundAnything.com, a site where he has already solicited $450,000.

When Personal Audio first began its litigation, it was under the impression that Carolla, the self-proclaimed largest podcaster in the world, as well as certain other podcasters, were making significant money from infringing Personal Audio?s patents. After the parties completed discovery, however, it became clear this was not the case. As a result, Personal Audio began to offer dismissals from the case to the podcasting companies involved, rather than to litigate over the smaller amounts of money at issue

Carolla has responded to this by noting that he’s continuing to pursue his counterclaims against the company in an effort to stop the company from ever suing other podcasters under such a bogus patent. And this is a good thing. As Public Knowledge is pointing out, continuing this fight is the only way to make sure that the company can’t continue to abuse this patent.

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Comments on “Podcasting Patent Troll Realizes Podcasters Don't Make Any Money; Desperately Tries To Escape Adam Carolla Lawsuit”

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S. T. Stone says:

Re: Re:

Carolla earned his millions through other endeavours (most notably Loveline and The Man Show).

This seems like Personal Audio saw someone pushing back at them and tried to say “fuck it, we’re out” until Carolla said “no, fuck you, you’re staying in until this is over”.

As well he should, too.

PaulT (profile) says:

Re: Re:

“They just wanted an easy settlement instead of a costly lawsuit.”

Perhaps, but they were also happy to go through the lawsuit since they assumed that a precedent here would make it easy to go after other podcasts. They just want to get out now, because if even the biggest podcast makes little money, there’s no point going after the smaller fish.

Carolla’s personal wealth is irrelevant, except perhaps that he’s now happy to spend some of it to keep these leeches busy.

nasch (profile) says:

Re: Re:

I’m pretty sure Adam Carolla specifically is a multi-millionaire, and certainly has money that a patent troll could leech off of.

Even if they won, they couldn’t get awarded money just because Carolla has some. They could only get damages for money that was made by infringing the patent. Since that is basically none, it doesn’t matter how rich Carolla is.

Scote (profile) says:

We thought they'd have just enough money to settle but not fight back..

I’d say they knew podcasters didn’t make a lot of money podcasting, which is why they sued them for settlement money thinking they couldn’t afford to fight back. Now Personal Audio are afraid they’ll lose now that someone has the cash to fight the suit all the way, and likely A) invalidate the patent B) win legal costs.

Seems that Personal Audio is like a bully that is really confused, angry and defensive when a carefully chosen victim fights back.

John Fenderson (profile) says:

Go Adam!

PA is not just wrong, but egregiously wrong, in two ways:

First, Adam Carolla (and other podcasters) aren’t actually infringing on PA’s patent in the first place. You infringe a patent by producing something using the patented technology. Last I checked, most podcasters aren’t actually writing podcasting code.

Second, their patent could hardly be more bogus. Seriously, read it (at least if you’re a software person). Even if you grant that software patents can be valid, this particular one only has a single claim (a very specific algorithm for handling playlists and the like) that could remotely qualify as not obvious to the average practitioner — even to the average practitioner of 30 years ago. The one claim that might be supportable is a very specific implementation of a general concept. PA seems to be trying to sue people for the general concept rather than the specific implementation.

All in all, PA is a classic example of a patent troll. The lawsuit should proceed with vigor.

Scote (profile) says:

Re: Go Adam!

“You infringe a patent by producing something using the patented technology. Last I checked, most podcasters aren’t actually writing podcasting code.”

Unfortunately, that isn’t actually true. You don’t have to make and sell a product to infringe on a patent. End users can violate patents just by their actions. Right now the new lawsuit against Bose accuses Beats of encouraging users to infringe Bose’ noise reduction patent by using the headphones without playing music to reduce ambient noise. Beats headphones can be non-infringing to make as headphones for listening to music, but a user turning off the music can turn them in to infringing devices. Patent suits aren’t always subject to exhaustion. Depending on the specific circumstances, a manufacturer can sue a company for making a patent infringing device, and you can be sued for using it in an infringing manner. It’s messed up, but that’s patent law for you.

John Fenderson (profile) says:

Re: Re: Go Adam!

I guess I could see the argument when it comes to a use by podcasters, sorta, but this…

“Right now the new lawsuit against Bose accuses Beats of encouraging users to infringe Bose’ noise reduction patent by using the headphones without playing music to reduce ambient noise.”

How does this square with the fact that I can use any patented technology I wish for my own private, noncommercial use? If I were to implement PA’s patent, word for word, in my own private server that I only use myself, I would not be infringing on their patent.

Scote (profile) says:

Re: Re: Re: There is no private exemption to patent infringement.

” If I were to implement PA’s patent, word for word, in my own private server that I only use myself, I would not be infringing on their patent.”

Yes, actually, you would. There is no non-commercial, private or home exemption for patent infringement. If you are using a patent, even at home on your private server, you are infringing. That’s what a patent does. It gives a total monopoly on the patented device or method to the patent holder, and takes away any right you have to use it. There is no “fair use” exemption to patent infringement.

True says:

Stupid move

Yep Suing Adam as a bad idea. The only thing stupider would have been Leo over at Twit the fan fall out most likely would have involved ever pc they own being compromised and there bank account being drained and credit ruined and most likely there IP addresses showing up on some FBI child porn honeypot.

Anonymous Coward says:

Re: Re: Stupid move

Leo did mention meeting with Carolla a few times WRT to a Patent Troll. I think Carolla was rallying the troops for assault of the Troll under the bridge. He has been holding back recently on what sounds like advice of council.

About the worst thing a nonpracticing entity could do for itself is win this case. It would be like dancing in a minefield between the trenches of WWI while pouring gasoline over your head and smoking a cigar.

Anon E. Mous (profile) says:

What would really be sweet is if Carolla’s legal fund grew even bigger or doubled. That would scare the hell out of Personal Audio CEO Brad Lidd.

As for Personal Audio CEO Brad Lidd’s complaints about Carolla’s fan’s contributing to the defense fund and Carolla not wanting to drop the suit. Tough shit! You brought the suit on, so man up and face the consequences Your so confident in your patent, then defend it at trial.

I am of the opinion that old Brad fears he and his patent trolling days could be at an end after this trial, and I sure hope that will be the case. I wonder if Adam is still taking donations, if so I will donate just to see Brad and his Patent take a beating in court.

Eldakka (profile) says:

Re: Priority date

Because prior to a recent change (2012?) in US patent law, it was the date of invention of the patent, not date of filing, that is used as the ‘priority’ date.

Therefore if something laid in a musty cupboard for 10 years, and someone else re-invents it and lodges a patent, the original inventor could dust off their invention and lodge their patent claim (even tho someone else has just lodged theirs) and ‘back-date’ it to 10 years ago.

With the recent change in US patent law (it was after 2009), the US has joined most of the rest of the world (for better or worse, it is debateable) where it is the date of lodgement rather than the date of invention that is used for priority.

That One Guy (profile) says:

Re: Re: Standard patent/copyright troll behavior

A modification of ‘use it or lose it’, where refusal to finish a case to fruition means the patent is automatically invalidated?

Interesting idea, though I think an ‘easier’ fix would be to make it easier, if not mandatory, for judges to award legal fees to the defense if the one who filed the claim on infringement suddenly decides that they don’t want to go to court after all. Do that and fighting back becomes much more viable, and the trolls much less likely to bring claims, as they’d know that unless they manage to win, they’re screwed, something that would heavily tilt the ‘risk vs reward’ equation against random trolling.

Coyne Tibbets (profile) says:

Proof of the Troll

The case is actually proof that Personal Audio is trolling.

The purpose of patent is to enforce a monopoly, and they could still do that, even though Adam Carolla has no money. So their attempt to drop the suit is proof of violation of the whole reason patents exist.

Perhaps this is a behavior that could be used in law to ban trolls.

Anonymous Coward says:

It appears that Personal Audio is trying to call uncle and get out of the whole thing, claiming that now that discovery has been done, it’s learned how little podcasters actually make.

This just reeks of bullshit.

They want out because they have to defend themselves against what is proving to be a competent adversary.

Sucks doesn’t it, Personal Audio?

makeitstop (profile) says:

A National Disgrace or Who is going to eat these Texas Cheese-Fries

These trials coming up in September 2014 are the direct result of the failure of all three branches of the Federal Government to prevent bad faith actors such as Personal Audio known as “Patent Trolls” from utilizing common sense Patent protections to extort money from defendants such as NBC or Adam Carolla.

Witness the recent disgraceful press release by Personal Audio as part of its Federally mandated settlement negotiations in these actions involving the Adam Carolla show.

Personal Audio willfully violated the confidentiality of the settlement negotiations and went public with an ludicrous accusation that Adam Carolla has refused to accept their dismissal of Personal Audio’s lawsuit against him while imploring Carolla’s fans to no longer donate to the Legal Defense Fund Carolla created to offset the costs of litigating with Personal Audio.

Personal Audio can drop their suit at any time. What they are actually attempting to stop with their ridiculous press release is Carolla’s fundraising which has successfully made the name Personal Audio synonymous with the term Patent Troll and is damaging Personal Audio’s much more lucrative cases against CBS, NBC and Fox.

The Patent Office under the supervision of the Executive Branch has been far too expansive in granting patents to entities such as Personal Audio that are vague and non-specific in what technologies they purportedly seek to protect.

In the case of Personal Audio, the “504” patent they seek to enforce against Carolla and The Networks is based on a 1996 patent involving the syndication of magazine articles over the internet that they applied for an update with the Patent Office in 2009 and after having that updated “sub-patent” granted in 2012 immediately began suing the networks and podcasters such as Carolla.

In concert with the shoddy examinations of the validity of such patents by the Patent Office, the Federal Courts such as in the Eastern District of Texas have been all to accommodating in allowing these Patent Trolls such as Personal Audio to file their actions and undertake trials thousands of miles away from their actual operations.

Adam Carolla and the Networks are based on the Coasts and Personal Audio is incorporated in the State of Vermont. However, all it took was for Personal Audio to take out a Post Office Box in Beaumont Texas to file for and obtain jurisdiction in Texas.

Thus all the defendants in this 504 patent action have been caught in the Patent Troll Speed Trap that operates as the Federal Courts of the Eastern District of Texas that harpoon defendants like giant tuna and drag them 2,000 miles from their respective home-bases to defend themselves against a Vermont company in Marshall, Texas.

Why? Because Federal Judges are appointed for life, answerable to no one and want these trials as a means of creating commerce for their courthouses and their localities that benefit from a steady stream of litigants staying in local hotels, eating in local restaurants and utilizing local business services.

The boom in Patent litigation in the Eastern District of Texas is staggering both in its volume and the enthusiastic manner that this Federal Jurisdiction maintains these actions for the Patent Trolls.

Witness the recent denial by the Federal Court of a motion to stay the Personal Audio case awaiting the outcome of a recently granted review of the validity of the 504 Patent by the Patent Trial and Appeal Board.

Should this Board find the 504 patent to be un-neccessarily applied to the Networks and Carolla for their broadband media efforts; the result of any trial ruling in favor of Personal Audio would automatically be invalidated.

Thus the common sense result would be to simply stay the upcoming trials in September and wait for the Patent Trial and Appeal Board to make their decision.

What harm could waiting for that decision be to Personal Audio in that they are a non practicing entity such that they are not being deprived of undertaking the use of their patent in the meantime?

However, their best pals in the Eastern District of Texas just ruled against this stay because like it or not they are actually in business with the trolls on these patent actions.

If the PTAB invalidates the patent, then the Courthouse in Marshall Texas is deprived of as many as 4 separate trials in this matter and we can’t have that because who is going to eat all these cheese-fries???

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