Protecting Podcasts

It’s about as dusty and arcane-sounding an office as you’ll find in American government: the US Patent and Trademark Office, keeper of records indicating who invented what and when.

But this week, USPTO made itself a hero among podcasters, taking a stand against a company that had been filing lawsuits claiming it was owed considerable amounts of money for licensing fees.

Back in October 2013, Electronic Frontier Foundation (EFF) requested an inter partes review of four claims made in US Patent No. 8,112,504 granted to Personal Audio LLC with a priority date of 1996. Personal Audio’s patent describes a “system for disseminating media content representing episodes in a serialized sequence.” That description alone would cover not just podcasts, but any kind of broadcast, it would appear, and in its order, USPTO notes the patent’s detailing of a player for audio programming in which the user can control aspects of playback.

An inter partes review essentially challenges an already approved patent after it has been granted, and the EFF pointed not only to CNN’s “Internet Newsroom” as an example of a broadcast that appeared episodically with an updated compilation file but also a predetermined website link for the compilation file, but also to CBC broadcasts including the science show Quirks and Quacks, distributed online prior to 1996.

EFF’s argument suggested episodic content posted online existed well in advance of when Personal Audio’s founder, Jim Logan, filed for and received the patent. Logan and Personal Audio have spent the past few years trying to sue podcasters over use of his “episodic content” patent without permission after also trying to claim a different patent covered the creation of playlists, which resulted in verdicts or settlements from Apple and Samsung.

Personal Audio had been suing for royalties from podcasters for years, including a case against comedian Adam Carolla, who spoke out against companies like Personal Audio and other “patent trolls” in testimony before the US Congress. In 2014, Carolla raised more than $500,000 for his legal proceedings but ultimately settled with Personal Audio, which then backed off podcasters. The company continued pursing patent cases against television studios, winning $1.3 million from CBS, according to an excellent overview of the case from ARS Technica.

EFF turned to crowd funding for the patent challenge, raising $80,000 to cover the costs of the inter partes review, well in advance of the $30,000 it sought to secure.
In a 29-page order released Friday, the USPTO found that the pertinent claims questioned by EFF are “unpatentable” and therefore Personal Audio cannot use them as grounds for further legal action against podcasters.

An attorney for EFF, Vera Ranieri, told ARS Technica that the victory is important but not all-encompassing, as Personal audio is seeking other podcast-related patents. “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,” she said.

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