While global biotechnology firm Monsanto battled a farmer over soybean patents in the US Supreme Court, a District Court in eastern Texas heard a similar case: Personal Audio, an alleged “patent troll,” filed suit against Adam Carolla’s Ace Broadcasting network for patent infringement.
The patent allegedly infringed? “System For Disseminating Media Content Representing Episodes In A Serialized Sequence.” In other words, podcasting.
Personal Audio has been around since the mid-1990s, and credits itself with inventing the “Personal Audio Player,” a device similar to the iPod and the source of many of the company’s patents, including this one.
“[Personal Audio CEO James Logan] is a small businessman, an entrepreneur, who invested a ton of his money into a startup, who still owns the patent, and is just trying to get compensation for his hard work as an inventor,” the company’s vice president of licensing, Richard Baker, said. “This is what the patent system is for.” According to Baker, Personal Audio is also trying to sell its podcast license to several major and influential podcasts and providers.
“I will say that we’re certainly looking to license this patent beyond those three (companies they’re suing),” he said. “We’ve sent letters to a number of companies that we hope will come to a license with us amicably, without having to resort to litigation.”
The prospect of this licensing scheme spreading across the entire medium has spooked many podcasters, including WTF Show host Marc Maron and Majority Report host Sam Seder. Both have received letters from Personal Audio “inviting” them to purchase licenses, and both have used their voices to back a recently introduced piece of legislation called the SHIELD Act.
Supported by the Electronic Frontier Foundation, SHIELD aims to make it prohibitively risky for alleged patent trolls to sue; according to the act, if a patent troll loses, they have to pay the other side’s legal fees and costs.
While this bill might be a minute step in a better direction, it isn’t even a bandage on the problem of corporation-favoring patent law. The SHIELD Act, if passed, might prevent companies like Personal Audio from shaking people down, but it won’t prevent companies like Monsanto, with “legitimate” patents on genetically modified and enhanced seeds, from suing farmers and forcing them to burn their crops when they find their seeds on the latter’s land or Apple from making the smartphone and tablet markets expensively litigious.
Libertarian intellectual property lawyer and self-described IP abolitionist Stephan Kinsella brought up an interesting point in a recent interview that seems to get lost in the general discussion surrounding patent trolls, patent law and intellectual property more broadly: as bad as patent trolls are — according to Kinsella they cost the US economy somewhere around $500 billion — legitimate patent holders, companies like Monsanto and Apple, can be — and often are — worse.
Speaking of Apple, imagine a scenario where the company going after Adam Carolla and the rest of the podcasting world wasn’t some tiny dot-com-era relic in Texas, but the multi-billion dollar corporation from Cupertino, Calif.
In this hypothetical situation, who would have the money or power to fight against Apple? How could a DIY podcast held together with string and some spit defend against Apple if it held the “podcasting patent” and wanted money for its license?
Millions of people subscribe and listen to podcasts through Apple‘s distribution and cataloging software, iTunes. Currently, it costs nothing to add your own podcast to the iTunes directory; all that is necessary to do so is being able to link to a podcast RSS feed. If Apple owned the patent on podcasting and forced all new podcasts to purchase this license, it might, as EFF activist Adi Kamdar suggested in reference to Personal Audio, create a “chilling effect” on the medium.
It’s possible, if the cost was high enough, that podcasting would meet the same fate as other forms of media and find itself subject to a “walled garden” model of organization. Only people with the means to do so would podcast. Vital voices and perspectives would be cut off.
Patent legitimacy as it is currently presented seems to be based more on perception than any objective standards of law. With Personal Audio, we question the legitimacy of their podcasting patent in a way we may not have done if another company with more buying power had reached it first. Therefore, the solution to the problem of patent trolling is not to “regulate” it with faulty measures and half-steps in the “right direction.”
The patent system itself must be abolished.
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- Trevor Hultner, Los “Secuestradores” de Patentes son Malos, pero las Patentes son Peores, Before It’s News, 03/15/13
Your lack of understanding of property rights is appalling Your lack of understanding of property rights is appalling. Mr. Kinsella has no credibility here since he thinks patent should not exist – thus anything done with patent are evil. Mr. Kinsella also does not understand property rights. He believes they are arbitrary social constructions to produce the greatest good for the greatest number (efficient allocation of resources). This is not the basis of property rights.
So…I'm wondering if you consider IP as something other than an arbitrary social construction?
Word!
"Jim Hodge – Allied Home Mortgage have been attacked by lawyers and the liberal press. A self made man of humble means is working hard to restore the jobs lost by these baseless attacks"
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Is it possible that your employment as a patent attorney has just a little something to do with your angst over Trevor's piece? See, even us lefty libertarians know a thing or two about incentives. And the desire for job security provides a powerful incentive to perpetuate even the most unjust state actions. For instance, why do you think police and correctional officer unions are so supportive of the drug war? Do you think it's all about their strong moral objections to use and sales of drugs?
Please look in the mirror before you assail the credibility of others, counselor.
and it's not about "credibility" anyway–this is not an question of expert authority on the law, but a question of political theory, of norms. Halling as usual is spouting nonsense. Trevor, btw, the $500B figure for trolls is since 1990, not annually — see http://c4sif.org/2012/07/patent-trolls-cost-produ… and http://c4sif.org/2011/09/patent-trolls-cost-the-e… and http://archive.mises.org/14065/costs-of-the-paten…
My recent post Trevor Hultner: Patent “Trolls” are Bad. Patents are Worse
It is absolutely clear that it is Halling again, as always, who views laws as arbitrary social constructs, grounded in nothing but utility. Kinsella's well-documented support of REAL property rights (the etymology of the word Real here is telling) is based upon sound principles, namely homesteading and peaceful possession. The objects of IP are not in any way exclusive and so the new social construct called IP which spins a fiction that ideas and their expressions can be justly monopolized, is not so grounded and is, in fact, unjust. It amounts to infringement of our most basic rights of conscience because it limits our expressions: we cannot make or says certain things because of someone's government-granted monopoly. Could anything be more arbitrary or unjust?
I wasn't sure. Thanks for the clarification though!