I listen to about 10 hours of podcasts a week and I consider myself a big fan of the format. Patent trolls, however, are attacking the format as we presently know it.
A patent troll is an entity that uses patent rights against accused infringers as a means of collecting licensing fees. They do this as opposed to, say, manufacturing products or supplying services based upon the patents in question.
The patent troll of note in the realm of Podcasting is called Personal Audio. For a peak at who they are and what they are doing to people producing podcasts, check out this This American Life breakdown of how they came to be. In short, it started with a guy named Jim Logan whose company Personal Audio is now using patents that very generally touch on the concept of podcasting itself to shake down producers for licensing fees. While Personal Audio has had some success in the past using the patent of one of Logan’s past failed inventions (magazines on cassette) to sue companies over the concept of playlists, the so-called podcasting patent is convoluted in that it was filed in 2009 and granted in 2012 despite the fact that podcasts had been in existence since as far back as 2004. According to Marc Maron, one of my favorite podcasters, this has not stopped Personal Audio from sending out a number of letters about proposed licensing fees to podcast hosts and producers.
Personal Audio is suing Adam Carolla over his podcast and Carolla is fighting that suit. He talked with Maron about the process, the importance of the case, and what the implications of a “win” might be. As Carolla says in the conversation, “Whether you are a fan of mine or not, that’s not the point. The point is that if I go down… they are going to see dollar signs… If they successfully get me off the air or shut down a part of my business… then the entire Internet is up for grabs as far as I am concerned. There is nobody doing anything on iTunes or YouTube or doing anything close to a podcast or streaming show that isn’t open for potential litigation.”
I transcribed this conversation as it is an important one and I was worried that otherwise interested folks might overlook it as it is buried in another interview. It took place at the front-end of Maron’s chat with the great Billy Connolly, which I strongly suggest you listen to. Please excuse any typos, as it was a somewhat quick transcription. Also, I omitted a small handful of anecdotes that were not essential to the overall story.
Folks interested in supporting the fight can click here, where there is also a video about the suit that Carolla is facing.
Note: The Electronic Frontier Foundation has filed a challenge with the Patent Office about this patent in particular.
Marc Maron: As some of you know, the patent troll situation is not over. The predatory lawyers that have turned out inventors who have claimed the podcast patent are still sending coercive letters to me and other podcasters and they are actively suing Adam Carolla for licensing infringement for a great deal of money. Adam Carolla thankfully has chosen to fight the fight and now needs our help to fight the fight. I think it is important that podcasters understand that this isn’t over. It is important for all of us that Adam not only fight this fight but win this fight against this particular patent troll because we cannot allow them to set precedent. We cannot allow them to win this case. We cannot allow them to have the liberty to license us for using a technology that none of us own by proxy because it is an extortion racket and they know that we are the venerable ones that can’t defend ourselves.
Adam’s chosen to defend himself and he needs some bread, so I talked to Adam about the very real situation of Personal Audio’s patent troll attack. Some of you have heard me talk about it, that it is an extortion racket, that it is a loophole in the patent office and it is one they are working with the support of a sympathetic judiciary in Texas and there is some action against it in the Congress and Senate and the President is aware of it, though not ours specifically. I would love that if Obama said, “You know, podcasters need your help.” If he said that it would be spectacular.
Marc Maron to Adam Carolla: I need you to make me feel better about this if you could because my panic has been ongoing and I have done what I can to raise awareness but now you’re in the thick of it. You are actually being sued. I think initially you didn’t think it was going to be a big deal. Is that true?
AC: My first impulse was, “Hey, good luck. I don’t even know what you guys are talking about.” And then I started to get some of the bits and pieces and some of the details and it is the most expensive litigation to defend. Basically somebody said, “It’s going to be $1.5 million if you want to go to court to defend yourself. It is a great country we have here where it is $1.5 million…
MM: For justice.
AC: Right, it’s $1.5m for justice. And I love the part where they go, “You won!” You won what? I am exactly the same, minus the $1.5m dollars.
MM: These monsters have figured out the loophole in the patent system to retrofit these patents on whatever comes up even though they were failed inventors to some degree and they have retrofitted this patent onto podcasting. And I think the issue is that none of us even know what the technology they’re talking about is nor do we necessarily employ it personally.
AC: To put a finer point on it, they set up in some backwater town in Texas, that’s where they hang their shingle. I don’t think these guys live there, their attorneys, their consortium. When you think about “big” anything or the worst this country has to offer, the reason everyone was occupying Wall Street, this is the face of that. It is a bunch of dudes in suits who were attorneys or whatever who got together, pooled their money, bought patents and are just applying them to anything in a money grab. Look, if this works, if they successfully get me off the air or shut down a part of my business or take a part of my business, then the entire Internet is up for grabs as far as I am concerned. There is nobody doing anything on iTunes or YouTube or doing anything close to a podcast or streaming show that isn’t open for potential litigation.
MM: That is not open to litigation from these predatory assholes. What they’re doing is they found this loophole and this way to work that is legally supported extortion. This is just a straight up shakedown that they have figured out how to do within the context of the patent system. And now we have got to fight… They know that the litigation is a fortune. What they’re banking on is that you’ll just pay them to protect you from them.
AC: Or they will break off or own a piece. You essentially go, “Here is a percentage of my business that you own” in lieu of this mountain of cash known as $1.5m that it is going to cost. First of, I am already into it to the tune of $50k. I am $50k in just trying to get the venue moved.
MM: We know the name of the entity is Personal Audio. I have received many coercive letters from them telling me that I am in violation – many podcasters have talked about it before. I think a lot of guys just assumed that it would go away and they didn’t take it seriously because not unlike you, you look at this thing and think, “This is ridiculous.” A few minutes later you think “This is fucking serious.” I know it doesn’t make sense to us intellectually and it doesn’t seem fair but then all of a sudden you have got to prove that. Can you talk about how much they want? What exactly are they asking for?
AC: The first thing they asked for, I believe, is $3m. [mutual laughter] I know you do comedy but you haven’t had that kind of laugh in a while.
MM: Are they starting a little high? What the fuck?
AC: They started with $3m. What they didn’t count on was the power of the pod. They messed with the wrong dude and/or dudes. Normally, they’re going after HP and they don’t have a microphone and a platform. They have a room full of attorneys and consultants and things get quietly settled, but they don’t have a pulpit. I think they made a miscalculation in going after us because we can rally the troops. Other guys have to pay up or go to court or do whatever they have to do.
What I love about what we’re doing is that it feels like it defines and embodies what we’re all here for. We all formerly worked for NBC and Viacom and Coca Cola and Pepsi and everything else and we all broke away and said we want to have our own unfiltered voice and we spread out. Some are serious, some are not, some are right and some are left and everything in between but the point is that all the guys who got into podcasting or were pushed into podcasting or found podcasting said, “I want to say what I want and I want to say what I want to the people who want to hear it and that is what we all set off to do. Now “the man” has reentered our word.
MM: In this form. The worst form. Thugs.
AC: And we had said that we’re all breaking away from the man, away from working terrestrial radio. We all have broken away from the man and the man has reintroduced himself to our little Utopia.
MM: But in the form of mafia tactics. It used to be that the man would come and say, “If you go with us and put our commercial on the air, we’re going to get behind you. This doesn’t want to get behind anything, they want to rip us off.
AC: When people ask “How pissed are you?” or “How upset are you? or “How dismayed are you?” I say, “You know you’ve arrived.” It’s official now. Podcasting is real because we’re being sued.
MM: What is in the balance of what happens here though, and the reason that all podcasters and people who listen to podcasts need to get behind this fight, is that if it isn’t won… The EFF has also filed a re-exam and who knows what is going to happen with that but that’s good news and a lot of my listeners donated to that and it is in the process where this patent is being reexamined and if it isn’t up to snuff with the patent organization, they will shut the thing down but that could take a long time. That’s one area of defense. Now you’re the guy in the trenches and your lawyers are going to fight this thing hands on.
AC: It is very symbolic of what we are trying to do and ultimately very American in its message in that these bullies a few hundred years ago were England. Now it is patent trolls. They’re going to come over here and try to impose their will but we have a little rag-tag group here. They have underestimated us. We are going to band together and we are going to fight and we are going to win. There is no doubt that they had no idea the power of what we do, our audience, the dedication of our audience, and that they bit off more than they are going to chew. This was a horrible move because as we all band together and get the message out – as I make the rounds and do publicity and as you do that and talk to your audiences and everybody in the podcast community communicates with their audience – there is going to be a wave here and once America wakes up and finds out what they guys are up to, they’re going to lose the court battle of popularity to be sure and they’re going to be looked at as scumbags.
MM: The president knows about it. People know about this shit. They shouldn’t be allowed to bully the little guy. If Apple and Samsung want to fight over their browser design that is legitimately patented, that’s fine, but for them to be able to take existing patents and shake little guys down because they can’t afford to defend themselves… The patent system was put in place to protect entrepreneurship, inventors, to protect all this stuff but these guys have figured out a way to get around that and use it as a way to extort.
AC: And in an attempt to rally the troops, whether you are a fan of mine or not, that’s not the point. The point is that if I go down, that is going to open… They are going to see dollar signs. They are going to go to iTunes and look at the top 200 iTunes podcasts and they’ll just start going down the line.
MM: I don’t think they have any idea how much any of us really make. I think that is where a $3m figure comes from. I think they make an assumption that all podcasters are making a living, which isn’t necessarily true. If we don’t fight this through you, what is to stop them from writing a series of a thousand letters to podcasters who don’t have a pot to piss in and they’re in their closet doing it and they’re telling these guys, “You can’t do it unless you give us a grand or two grand, five grand…” They won’t even say what kind of money they want. With the letters… You’re in a lawsuit so there is a definite number, but with the letters they’re like, “We need to talk.” What is the licensing. “Well, we’ll need to figure that out.” What the fuck?
AC: I imagine that it will be some sort of sliding scale. They’ll ask how much money you produce or it will be about how much they think you produce or how much you are worth and they’ll take whatever percent of that. I am sure they will adjust it… It is a lot like almost everything in this country where somebody with good intentions 100 years ago said, “There needs to be a law to protect” and then fill in the blank. And lawyers it around and try to figure out, “This law was figured out with the best of intentions and now how can I use that law to line my pockets.” And that’s basically what is going on here.
MM: So how is it going to work?
AC: Through Fund Anything, I am going to raise money and hopefully we raise more than we need and whatever is left over will go into some general podcasting defense foundation, or to the Make-a-Wish Foundation, or it will just go up my nose. [laughter]
MM: You’re going to start a career in cocaine now? [laughter]
AC: Whatever happens, we’re going to beat back the trolls.
MM: I do want to reach out to my audience and say that what we did before when we raised money for the EFF is we created grassroots action and they chose it as a cause that they could get behind and a reexamination of this patent was filed and that is in process now. That is one front of defense.
AC: And nobody’s profiting from this thing. Nobody’s wetting their beak. Fund Anything is not taking 10%. They’re not doing anything, we’re not taking anything. It’s all going to fight the lawyers.
MM: This has to be stopped. You’re the guy fighting it. The goal is to stop being shaken down and to extorted without foundation.
PHOTO SOURCE: Current Edge