Fifty episodes! Having skipped just two weeks in the past, this marks one whole year of the Techdirt Podcast! In honor of that, we're taking on a very relevant topic that we haven't yet discussed: the medium of podcasting itself.
Remember Personal Audio? That's the company that claimed it had a patent (8,112,504) from years ago that covered all podcasting and then sued a bunch of top podcasters over it. The company got itself lots of attention, including from EFF, who filed with the UPSTO to invalidate the patent. In response, Personal Audio tried to intimidate EFF's donors. Eventually, Personal Audio realized that podcasters don't actually make that much money and settled a bunch of its lawsuits -- even with Adam Carolla (which actually does make a bunch of money) who had insisted he wasn't going to settle.
Most of those settlements were for no money, but the company did win its lawsuit against CBS (in Eastern Texas, of course). However, the EFF's initial effort to invalidate the patent at the USPTO (which is a separate process from the lawsuits) has now resulted in the Patent Office invalidating the key claims in the patent. You can read the USPTO's decision, in which it notes that the key parts of the claim were clearly obvious to practitioners skilled in the art at the time of the patent and that the prior art invalidates the patent as well.
persuaded by a preponderance of the evidence that Petitioner’s rationale for
obviousness is supported by rational underpinnings.
Kudos to the team at EFF, who have been doing some great work on patents lately (contrary to one of our grumpy commenters who insists that the EFF lawyers will never be seen as "serious professionals" by the US Patent Office, and will remain "marginal players at best"). Can't wait to see what patent projects they take on next...
A year ago, we wrote about the ridiculous situation of a company called Personal Audio, which claimed to have a patent that covered podcasting and had started going after a bunch of the top podcasters, including Adam Carolla and How Stuff Works. The patent in question, 8,112,504, was for an attempt to deliver news on audio cassettes. The patent itself is exceptionally broad and ridiculous. It never should have been granted. Even if it was legit, the idea that it has anything to do with podcasting is simply ridiculous. Last summer, NPR's Planet Money had a good episode all about this patent, in which the lawyer and the patent holder made some ridiculous claims, pretending that this patent was "the roadmap" that taught people how to podcast.
The good folks at EFF started a "save podcasting campaign" and raised some money, which they used to file a challenge against the patent at the Patent Office. That process is still ongoing, but it appears that Personal Audio and its lawyer have decided to go to war with the EFF and its donors, trying to intimidate them. In one of its lawsuits over the patent (completely unrelated to the challenge at the USPTO), Personal Audio sent a subpoena to EFF demanding a whole bunch of stuff, including identifying information on everyone who donated to the campaign. Here's the full list of what they're actually asking for:
Any communications between the EFF and Defendants specifically Concerning the '504
patent, including but not limited to the construction of any claim terms and any alleged
prior art relevant to any claim of the patent.
Any communications between the EFF and any actual or potential witness specifically
Concerning the '504 patent or prior art to the '504 patent.
Any communications between the EFF and any third parties specifically Concerning the
'504 patent, including but not limited to any communications with the Cyberlaw Clinic at
the Harvard University Berkman Center for Internet and Society, Julie Samuels, Mark
Cuban, RPX, Article One Partners, Mark Lemley, Durie Tangri Page Lemley Roberts &
Kent LLP, the Open Innovation Network, StackExchange, Google, Inc and/or their
representatives, agents or counsel.
Any non-privileged communications regarding the prior art cited in any proceedings in
the Patent and Trademark Office Concerning the '504 patent.
All fundraising activities in connection with the proceedings in the Patent and Trademark
Office specifically Concerning the '504 patent, including but not limited to the
Identification of the names of all Persons who donated or contributed and Identification
of the amounts contributed by each Person, as well as the Identification of any promised
contributions which have not been received yet as well as the Persons who promised such
contributions and the amount thereof.
All steps taken in order for the EFF to be "fully prepared" to take on Personal Audio with
respect to the '504 patent.
Identification of any Information Concerning any prior art (whether or not included in
any Patent and Trademark Office proceeding) that would tend to show either: (1) the art
did not disclose any element of the claims of the '504 patent or (2) the art was not
demonstrably available prior to any filing date of the '504 patent.
Any nonprivileged analysis or Communications Concerning the following: (1) the claims
of the '504 patent; (2) any prior art to the '504 patent; and (3) the meaning or
construction of any of the terms in the claims of the '504 patent.
EFF is fighting the subpoena, arguing a variety of points about how this goes way beyond any reasonable effort. It's not just seeking information totally irrelevant to the case, but it's trying to get EFF to disclose private information about individuals, violating their First Amendment rights of association. As the EFF notes in its blog post about this:
We believe that Personal Audio’s subpoena to EFF is improper for a number of reasons that are laid out in detail in our motion. Above all, we are outraged that Personal Audio is seeking to invade the privacy and associational rights of hundreds of our donors. EFF takes the privacy of its members and supporters extremely seriously—and so does the Constitution. As we explain in our motion, the First Amendment protects our donors’ right to privacy, and Personal Audio’s supposed need for the information does not trump those rights.
Personal Audio’s tactic is also improper for several other reasons. For example, it is appears to be primarily intended to avoid the well-defined limits of the PTO discovery process. The petition we filed follows a new, streamlined and therefore relatively inexpensive process. Rather than respond to that petition following the rules of that process, Personal Audio is trying to use entirely separate litigation as an excuse to raise the stakes on EFF – something Congress never intended. If Personal Audio succeeds, we fear it will send a message that this new process can be made invasive, cumbersome and expensive after all, which will in turn discourage others from using it to challenge low quality patents. That would be a shame for all of us.
Beyond that, this seems like a clear attempt by Personal Audio to intimidate both EFF and its donors -- though if they were even remotely aware of the EFF and its backers, they should have known how badly that plan would backfire. Hopefully the court will rightfully quash the subpoena and, perhaps, make it clear to Personal Audio's lawyer, Jeremy Pitcock, that this is totally improper.
We've written a few times about the patent troll "Personal Audio" which claims to hold a patent (US Patent 8,112,504) that it says covers podcasting. With this patent it's been busy shaking down the creators of a bunch of popular podcasts. The company's owner and his lawyer recently asserted (somehow, without laughing) that their patent was "the roadmap" for podcasting, even though no one involved in the early days of podcasting was even remotely aware of the patent.
It's taken some time, but the EFF has been targeting this particular patent, and has now officially challenged the patent seeking to get it invalidated.
"Bad patents like this one slow down innovation—exactly the opposite of what the patent system was intended to do," said EFF Senior Staff Attorney Julie Samuels, the Mark Cuban Chair to Eliminate Stupid Patents. "We are thrilled to challenge this bad patent and make the world safer for creators and podcasters."
The process involving these kinds of things is very slow and convoluted, but hopefully this patent can be busted, and podcasters won't have to live in fear of a shakedown letter from Personal Audio.
from the a-failure-in-business-now-shaking-down-podcasters dept
We already wrote about This American Life's sequel concerning patent trolls, but there's also something of a companion podcast on Planet Money highlighting the patent troll suing podcasters. We'd talked about this earlier in the year when it first made news, but Planet Money actually gets the troll and his lawyer to talk -- which is pretty rare in the patent trolling world. The patent (8,112,504) is a "new" patent -- granted in February of 2012 -- but the priority date goes all the way back to 1996.
The "inventor," Jim Logan, started a completely failed business around delivering audio news on cassettes. And now he claims to have invented podcasting and wants a cut. Once again, it's an example of everything that's wrong with the patent system. Logan didn't invent podcasting at all. He had nothing to do with podcasting. He tried to start a bad business, which failed miserably years ago, and now others have done some actual innovating, and he's trying to demand cash from a bunch of them. When Planet Money's reporter Zoe Chace points out to Logan and his lawyer that it sounds ridiculous because Logan clearly didn't invent podcasting, his lawyer, Richard Baker, pretends otherwise, and makes a laughably ridiculous statement:
"This is the roadmap. This is Jim's patent. This is the roadmap that would tell someone how to do podcasting, how to do MP3 players. A lot of the roadmap is right here in the columns of this patent."
But, of course, that's bullshit. No one read the patent and said "Aha! Now we know how to podcast." Because nothing in the patent is about podcasting. What actually happened was plenty of people started to realize that the decreasing cost of storage, the increase in bandwidth and the rise of MP3 players, combined with syndication protocols like RSS, meant that you could distribute long audio files easily. There's nothing in the patent that's useful at all. This is the big myth of patents: that they somehow disclose something useful. That's almost never the case, and is certainly not the case with this particular patent, especially since it was issued nearly a decade after podcasting came about.
Chace finally gets Baker to admit that "it doesn't make a difference" whether or not anyone involved in podcasting, such as the guy who wrote the podcasting functions of iTunes, was even aware of the patent.
Chace does make one mistake in describing how patents work, claiming that even though lots of people had thought of "playlists" (the key part of the patent) before, it doesn't matter because Logan was "the first to write it down." But that's not actually how patents work. While it's true (sort of) that after the very recent switch to a "first inventor to file" system, the first inventor to file gets the patent. But until just a few months ago, it was the first inventor who had the right to the patent. So her claim that Logan's patent is legit because he filed first is simply wrong. Furthermore, it's wrong (even today) to say that because he's the first to write it down, then the patent is his, because prior art and obviousness are two things that make a patent invalid, and the idea of a playlist way, way, way predates Logan's patent.
In the podcast, Logan and Baker continue to insist that there's nothing wrong with what they're doing, because it encourages people to invent. But that's clearly ridiculous (and it's a bit disappointing that Chace didn't call them on this), because that's not what happened here. Logan didn't invent podcasting. He invented something else that failed in the marketplace. That should be the end of it. Now he's trying to score money from people who did something entirely different and are more successful than him. That's about as antithetical to a free market system as you can imagine. We don't reward the losers who failed to build a compelling product by forcing those who succeeded to give them money. That's just bad for everyone. It encourages less innovation, and it (most importantly) overvalues ideas over execution, which is a huge problem. We shouldn't reward failed ideas. We reward successes, and we do that in the marketplace. But patents do the exact opposite.
We've written a few times about a patent trolling operation called Personal Audio. Like so many patent trolling companies, who's actually behind it is something of a mystery, but it does have an empty office in East Texas that no one ever goes to. It sued Apple and others claiming that it held patents on the concept of "playlists" and actually scored some victories. Amazingly, it sued Apple multiple times over the same patent, arguing that small changes to its products were new violations.
Well, the company is back with a "new" patent, 8,112,504, called a "System for disseminating media content representing episodes in a serialized sequence" and appears to be claiming that podcasting itself violates the patent -- and has sued three podcasters, including Adam Carolla's "ACE Broadcasting," HowStuffWorks and Togi Entertainment. Personal Audio focuses on claim 31 of the patent, which you can read here:
31. Apparatus for disseminating a series of episodes represented by media files via the Internet as said episodes become available, said apparatus comprising:
one or more data storage servers,
one or more communication interfaces connected to the Internet for receiving requests received from remotely located client devices, and for responding to each given one of said requests by downloading a data file identified by a URL specified by said given one of said requests to the requesting client device,
one or more processors coupled to said one or more data storage servers and to said one or more communications interfaces for:
storing one or more media files representing each episode as said one or more media files become available, each of said one or more media files being stored at a storage location specified by a unique episode URL;
from time to time, as new episodes represented in said series of episodes become available, storing an updated version of a compilation file in one of said one or more data storage servers at a storage location identified by a predetermined URL, said updated version of said compilation file containing attribute data describing currently available episodes in said series of episodes, said attribute data for each given one of said currently available episodes including displayable text describing said given one of said currently available episodes and one or more episode URLs specifying the storage locations of one or more corresponding media files representing said given one of said episodes; and
employing one of said one or more communication interfaces to:
(a) receive a request from a requesting client device for the updated version of said compilation file located at said predetermined URL;
(b) download said updated version of said compilation file to said requesting client device; and
(c) thereafter receive and respond to a request from said requesting client device for one or more media files identified by one or more corresponding episode URLs included in the attribute data contained in said updated version of said compilation files.
Now, let's be clear. This patent was applied for on March 4, 2009 and granted on February 7, 2012. Isn't it great that the "new" USPTO is now rushing through patent approvals, so examiners like Carl Colin could claim that this patent was both "new" and "non-obvious" to those skilled in the art, when podcasting itself has been around since at least 2004. Hell, why not look it up on, oh, HowStuffWorks -- one of the companies being sued for "violating" this patent that wasn't applied for until 2009? Incredibly, Adam Carolla's podcast started on February 23, 2009... or exactly two weeks before this patent was applied for. Update: As pointed out in the comments, this is actually a "child" patent of an earlier application, so they can argue a priority date from back in 1996. In other words, this is really a submarine patent (which were supposed to have been outlawed).
Of course, with so many podcasters out there, Personal Audio is not just focused on the three companies it's sued. The EFF notes that the company has sent out licensing demands to a bunch of other podcasters, as well. The good news is that the EFF is now trying to help those podcasters fight back.
What might make this even more interesting would be if people like Adam Carolla, who have huge audiences that take what they say really seriously, were able to get those audiences suddenly interested in just how totally screwed up our patent system is. Want the problems of the patent system to go mainstream? Just start having Adam Carolla talk about how messed up it is a few times on his podcast. Carolla has said that his podcast is the most downloaded podcast ever -- and if his listeners understood just how screwed up things are with the system, perhaps we could actually make a move towards really fixing an incredibly broken patent system. Carolla has apparently talked about it a little bit, and called for a "grassroots legal defense fund," but that's not going to change the actual system. If he could speak out against the problems of the overall system, rather than just that one patent, it might help permeate the public consciousness that it's the system itself that's broken.
One purpose for which micropayment solution Flattr (which we use here on Techdirt) has certainly caught on is providing a way for people to support podcasts. Apparently, simple integration allowing people to designate some money for podcasters has just "felt right" for lots of users who do exactly that. And some podcasting/podcatching apps have tried to accommodate this. Instacast, a popular app for downloading and listening to podcasts on the iOS platform, integrated Flattr back in February, but in early May the arbitrary gatekeepers at Apple rejected the app because the Flattr integration went against Apple's demands that all in-app payments go through its own system. Vemedio (the makers of Instacast) along with the folks at Flattr appealed to Apple that this was ridiculous... but Apple issued a final decision rejecting the app. In response, Vemedio is very reluctantly removing Flattr from its app, meaning podcasters just lost a good way of making money, all because Apple can't control it. More evidence of Apple becoming a rather evil gatekeeper, rather than an enabler of new and interesting ideas.
After last week's exploration of a smaller movie project, I thought it might be nice for this week's "case study" post to focus on a more "mainstream" (even if still somewhat independent) Hollywood movie maker. Hope you enjoy this week's case study...
When I first started talking about smart business models that involve the concept of CwF+RtB (Connecting with Fans + Reasons to Buy) for musicians, it involved less-well known musicians, running experiments in doing things like giving away music for free. And when that happened, we were told that this could work for small, less well-known musicians, who had to value attention over money, but that it would never work for more well-known musicians. And then, suddenly, we saw it happening with incredibly famous musicians like Trent Reznor... and critics said "well, it can work for rock stars like Reznor with a giant audience they've already built, but it's no solution for up-and-coming artists." This contradiction had me banging my head for a bit, and someone even jokingly dubbed the phenomenon Masnick's Law, defined as:
"in any conversation about musicians doing something different to achieve fame and/or fortune someone will inevitably attempt to make the argument that 'it only worked for them because they are big/small and it will never work for someone who is the opposite,' no matter how much evidence to the contrary might be readily available."
After we discussed this, someone (seriously) then claimed "well, it can work for people who are small and have nothing to lose, and it can work for rock stars who already have their millions, but it doesn't work for those in the middle." Eventually, it even reached the point that I spent time working down a list of musicians, big to small, all making use of this general concept to prove that it can work at any level.
And, while I hope that issue is settled in the music space, it's amusing to me that I keep ending up in the same discussion in other industries -- with films being a big one. One of our regular commenters, who claims to work in Hollywood, often points out that no "big" filmmakers seem to be embracing unique business models ideas, and that the only examples we have are people like Nina Paley, a wonderful filmmaker, with a devoted following, but not someone considered to be a "big" filmmaker.
However, I don't think this is true at all. There are filmmakers doing all sorts of interesting things -- including "big" filmmakers who really work hard to connect with fans in new and interesting ways. One, who we've spoken about a few times in the past, is Kevin Smith, most famous for Clerks. We've pointed out in the past how he's embraced the CwF+RtB concept (since long before we'd even thought about it) and had a very progressive view towards embracing "pirates," by noting that it was one way to create "converts."
Converts to what? Well, that keeps evolving, which is why Smith has become a really fascinating entertainer to watch when it comes to connecting with fans and giving them a reason to buy. As mentioned, he's really embraced this concept for well over a decade -- for example, with his own comic book store that sells all sorts of comic related items, including many related to Smith's movies, as well as his various books and comics that he's authored.
But what I've found most fascinating is watching how Smith's adventures in podcasting have evolved. A few years back, he started a podcast, called the SModcast, which was mainly Smith chatting every week or so with his longtime producing collaborator Scott Mosier. I started listening to these two years ago, when I needed podcasts to listen to on a cross-country drive, and haven't stopped since. They were fun (and funny) and something that he clearly enjoyed doing for the fun of it -- but which also helped him connect with fans. Last year, I paid a fair amount of cash for me and my wife to go see him do one of his famous Q&A shows in San Francisco, which, if you haven't seen them, are like 3-plus hours of pure, hilarious, standup comedy, all in answer to random questions from the audience. Since the answers often went on for half an hour or so, there weren't actually too many "questions," asked, but it was telling that most of the questions were really quite knowledgeable about all aspects of Smith's life -- with much of it coming from what he's revealed during SModcasts. I enjoyed it tremendously -- and almost certainly wouldn't have gone if I hadn't listened to SModcast (even though I've liked his movies since I saw Clerks back in '94).
I thought that this was a great example of CwF+RtB. He was connecting with infinite goods like Twitter and with the free podcasts -- all given away for free, and monetizing it with these Q&A's (scarce access) and movie deals (in part built off of his loyal following). But he keeps taking it further.
Earlier this year he did two new things: first, he started offering additional podcasts, both from himself and others. It was mainly the rotating cast of close friends of Smith, many of whom have appeared on previous SModcasts, doing their own podcasts, and putting together a Smodcast podcast network. And, I've actually become hooked on those as well -- even though I never thought I'd care what Smith's friends had to say on anything (though, ironically, on a recent episode of one of these podcasts, the Tell 'em Steve-Dave show, the hosts came out supporting John Mellencamp on his recent confused anti-internet statements, with Walt suggesting that anyone who downloads unauthorized content should have their computers destroyed on the spot). The second thing he did was he took SModcast on the road, with a series of live shows at various venues (including the Improv in Hollywood). Yes, this was basically still him sitting around, chatting with Scott Mosier about whatever he felt like chatting about... but people were paying to see them do it live.
Once again... giving away the infinite goods for free... and realizing he could sell the scarce good (seats/access). In fact, as expected, the infinite goods help make those scarce goods more valuable. The reason why people want to go see Kevin Smith literally have a random conversation with a close friend is because of all those free Smodcasts they listen to.
And now he's taken even that to another level. After the success of some of the other podcasts and the live shows, Smith set up a Smodcastle theater in Los Angeles, where he not only will regularly perform Smodcasts, but has a whole host of other podcasts being recorded as well. Hell, he'll even host weddings there for a large fee -- where he'll turn your wedding into a podcast where he'll interview the bride and groom before officiating their wedding. Seriously.
In the following interview from Attack of the Show, Smith and Mosier talk about Smodcast, and towards the end they hit on the "monetization" issue, making two key points. First, they didn't even try to monetize it for a couple years. The focus was very much on building up an audience. Yes, Smith had a good-sized audience of "true fans" to start with, but it still took time to really build a core podcasting audience (something that Twitter has helped with). The second, is that they recognize the value of free: noting that the infinitely available things -- such as what's on Twitter and in the podcasts themselves, should always remain free, but the scarce things, such as seats to the show and their listeners' attention (in the form of sponsorship) are where they can make money:
Now. obviously, no one's saying that the way for big Hollywood directors to make money these days is for them all to set up their own theaters. Just like no one said the way to make money in music was to copy exactly what Trent Reznor had done. But there are serious lessons to be learned from this, even if Smith himself is making much of this up as he goes along. But he's really showing how he isn't even thinking just about being a "filmmaker." Too often, we hear people in a certain profession say "but that's how I make my living... from my music/movies/art/etc." Smith realized long ago that it goes beyond that. He's an entertainer, and he knows quite well (whether on purpose or not) how to mix "free" into a structure where he's really transparent, authentic, available... and offers up all sorts of incredibly valuable scarcities for people to buy.
Oh, and in a bit of colliding worlds, Smith is going to have a "Starfucking" podcast that will include friend of the blog, Amanda Palmer, along with her fiancé, Neil Gaiman -- though, I imagine they (unfortunately for me, but fortunately for most other people) won't spend much time talking entertainment industry business models.
Back in July, we wrote about how a company named Volomedia had gleefully announced that it had patented podcasting. The patent itself (7,568,213) seemed ridiculously broad, obvious and covered by prior art. On top of that, it was difficult to see how it passed the current (though, perhaps not for long) "Bilski" test for what can be patented.
VoloMedia, an online ad tools company, is gleefully declaring that it has been awarded a patent on podcasting. The specific patent, 7,568,213, is for a "Method for providing episodic media content." Not surprisingly, it's a continuation patent (sometimes referred to as a submarine patent) where the claims are changed over time to keep current with what's happening in the market. The patent itself is short, with the main claim being:
A method for providing episodic media, the method comprising: providing a user with access to a channel dedicated to episodic media, wherein the episodic media provided over the channel is pre-defined into one or more episodes by a remote publisher of the episodic media; receiving a subscription request to the channel dedicated to the episodic media from the user; automatically downloading updated episodic media associated with the channel dedicated to the episodic media to a computing device associated with the user in accordance with the subscription request upon availability of the updated episodic media, the automatic download occurring without further user interaction; and providing the user with: an indication of a maximum available channel depth, the channel depth indicating a size of episodic media yet to be downloaded from the channel and size of episodic media already downloaded from the channel, the channel depth being specified in playtime or storage resources, and the ability to modify the channel depth by deleting selected episodic media content, thereby overriding the previously configured channel depth.
I have a lot of trouble understanding how this is possibly patentable. I would think that Dave Winer's work on enclosures for audio content in RSS would be seen as significant prior art. Beyond just the prior art, you have to wonder how this passes the "bilski" test (what was transformed here?) or the KSR/Teleflex test on obviousness (this is simply combining things that were already out there). Still, expect plenty of trouble here. Considering that Volo wasted no time at all in rushing out a press release, expect them to be aggressive with this patent -- without realizing that it may be unleashing significant anger from the podcasting community that it probably doesn't want.