In the comedy industry these days, it seems like more and more people are talking about podcasting. In the new book Comedy Under Attack: the Golden Age and the Headwinds (http://comedyunderattack.com), podcasting was portrayed as one of the hot new things in modern comedy and thanks to his WTF podcast Marc Maron was toasted as its foremost trailblazer. But Maron isn’t the only comedian who has made giant strides in that arena. There is Adam Carolla, too, a comedian who reportedly holds the record for having the “most downloaded podcast” around. For Maron, Carolla and their comedy brethren the podcasting movement had been flourishing in peace until recently when they came under assault by a group of folks who have been referred to, rather disparagingly, as ‘patent trolls’. (By way of simple explanation, ‘patent trolls’ are guys who make their money by registering patents for products or processes that they themselves do not use but would sue other people who actually use those patents for any purposes. In more polite language, they are referred to as ‘Non-Practicing Entities’ or NPEs.)
But, first, here’s the story:
Sometime in early 2013 Maron received a letter from an East Texas company known as Personal Audio informing him that his operation of his podcast show was a violation of their software patent. The message was clear: he needed to either license the patent from them at a fee or face legal consequences. While Carolla didn’t get a [warning/demand] letter: the Personal Audio people actually did hit him harder than they hit Maron when in January 2013 they sued Carolla’s ACE Broadcasting Network over his self-owned podcast ‘The Adam Carolla Show.” Personal Audio is reportedly offering to settle the case against Carolla for $3million. (The company has also gone after comedian Chris Hardwick, the current host of Comedy Central’s @ Midnight, over his ‘Nerdist Podcast’.) By the way, “podcasting”, a term coined from a mix of ‘I-Pod’ and ‘broadcasting’, is a technology that basically allows users to pull down MP3 audio files onto their computers or personal digital audio players (like iPods) from a podcasting website.
And from the look of things, the company (founded by a guy named Jim Logan) isn’t just going around making threats and bloviating about consequences; it actually seems to play pretty hard ball: for instance, in 2011, it got a jury to award it more than $8million against Apple, Inc, on its claim that Apple’s i-Tunes playlists infringed its patent. Personal Audio has also forced big names like Samsung, Motorola, Sirius, Amazon, RIM and others to enter into patent licensing agreements with it after it sued them in patent court; it has also sued NBC and CBS.
Not surprisingly, all this stuff sounds pretty offensive to Maron: “We’re just guys talking on microphones out of our garage…then someone comes out of nowhere and says we owe them money.” For his part, Carolla has dug in his heels and has vowed to fight it out with Personal Audio in court. This past March he launched a fundraising campaign, complete with a promotional video. His “Save our Podcasts Defense Fund” (http://fundanything.com/patent troll) aims to raise about $1.5 million for the battle. (As of April 24, they’d raised more than $363,000 and counting.) That same month of March, Carolla and Maron organized a show in Redondo Beach, California, attended by talk show host Jimmy Kimmel, Drew Pinsky and others, in support of Carolla’s legal defense fund.
To be sure, patent trolls are a matter of big concern to comedians. For starters, alongside all the blessings of social media, podcasting has become a quite valuable new tool for comedians today in comedy’s “golden age”. Podcasts are pretty cheap to produce and distribute and pretty much anyone with a computer and microphone can manage to get around to doing it. To comedians, the chance to reach their audiences in this way is very appealing. Needless to say, if the patent trolls win and licensing fees become the norm, then podcasters will have to pass on the cost of licensing fees to their listeners. Long story short, this whole thing creates the risk of a new ‘pay-to-play’ model that will quickly transform the economics of podcasting to the disadvantage of comedians.
And there’s another reason: People have talked about ‘p.c.’ (political correctness) and have knocked the so-called ‘pc-brigade’ as one of the major forces out there today that are giving comedy big-time hell. On their own, patent trolls may be less visible to many people as a threat to comedy, but the threat they pose to comedy is no laughing matter: for instance, unlike the pc – brigade who are merely pursuing their vision of a good society, the patent trolls are in it only for the money and in so doing they are reaching their hands more directly into the pockets of comedians. Even worse, they are threatening to curtail the further growth of podcasting in the comedy industry, especially among the newbies and the less established comics who have less money and almost certainly lack the clout of guys like Maron and Carolla.
Aside from the comedy industry, patent trolls have also been a real pain for people trying to make a living in other sectors of the economy like coffee houses, hotels, restaurants, supermarkets, real estate agents and so on. And surely the activities of these patent trolls have done them no favors in the court of public opinion. For instance, one of the most aggressive patent trolls out there is one called Innovatio IP Ventures from California, which claims a large number of patents in the operation of Wi-Fi services.
In a rather brazen tactical decision, Innovatio simply chose to ignore the product manufacturers (like Cisco and Motorola) and instead went directly after hotels, coffee houses and other end users of Wi-Fi, threatening them with expensive lawsuits and demanding a couple thousands of dollars in licensing fees. Soon after it was formed in early 2011 by a California lawyer named Noel Whitley, the company reportedly sent over 8,000 demand letters to end users across all 50 states literally asking them to pay up or come to court. The calculation here is clear and simple: end users who are not sophisticated about patent matters would rather pay a few thousand dollars than engage in very expensive patent litigation in federal court.
Not surprisingly, many commentators out there have openly lamented how much things have gone off the rails and so far away from the original goal of the patent law which was to reward genuine inventors like Thomas Edison and Nikola Tesla (think the light bulb, cameras, motion pictures and more) rather than guys like Jim Logan and Noel Whitley, who seem to be smiling to the banks today with bundles of (other people’s) money.
In the overall scheme of things, guys like Maron who are merely “talking on microphones out of their garages…” to their friends and fans are obviously just “end-users,” just like all the hotels, coffee houses and real estate agents who are getting hammered by patent trolls. And Carolla, too, of course! As one might expect, these mere end –users wouldn’t likely know much about all the technical mumbo-jumbo of patent-speak, much less the complexities of high-wattage patent litigation in federal court. Ironically, these hapless end-users are the very people that the patent trolls have chosen to confront rather than the big manufacturers and patent vendors who have both the technical knowledge and the money to fight back against the patent trolls.
But exactly what does the patent law do to help the little guy, Maron and Carolla included? Well, not a heck of a lot, at the present time at least. To the contrary, the patent trolls seem to be having a field day. The federal courts have said that when patent trolls go after anybody, including poor end users, the patent trolls are – get this!- exercising their First Amendment ‘right to petition’ the government. Innovatio played this hand brilliantly in 2001 when it beat back Cisco’s attempt to protect its end users from Innovatio’s ‘smash-and- grab’ tactic. What a funny new way for a patent troll to use the First Amendment, the American comedian’s best friend, of all things.
So, just where do matters stand now for Maron, Carolla and the comedy industry in the battle against patent trolls? Well, here’s the thing: First, Carolla had no choice but to do something since he’s already been sued. Yet his decision to push back pretty hard is a smart move in itself. For instance, if they were to enter into settlement negotiations later on, his hardball tactics so far would make him a stronger player in those negotiations with Personal Audio. Certainly, it would be wise for him not to take the settlement option off the table because complex litigation such as this one can seem like an unruly horse galloping to an unknown destination. Plus, Personal Audio’s case may not be so weak in the end; after all, its prior encounters with powerful entities like Samsung and Motorola so far have proven that Personal Audio can actually win games. In short, no one knows the strength of Personal Audio’s case yet. So, it’s not yet party time for the podcasters.
Yet, going forward, the comedy industry ought to do more than just express support for Carolla and here’s why: Even if Carolla wins, it doesn’t necessarily mean that Personal Audio will shut down or that its lawyers won’t find some obscure ground to go after any other podcasters. (Not unless, of course, its patent is declared invalid.) Generally, the result of any litigation binds only the parties involved. Therefore, in the long run, the best solution is to change the law so that every podcaster is protected against patent trolls for good.
The expected game changer here is the proposed legislation called ‘the Innovation Act,’ which passed the House of Representatives in December last year. Concerning the menace of patent trolls, the best part of the law for comedians is the provision that protects end users by allowing the big tech guys like Cisco, for instance, to step into the shoes of their customers and take on the patent trolls on their behalf. The proposed law would also discourage the activities of patent trolls by forcing anyone who files a patent lawsuit to pay the legal fees and other costs of the guy who ends up winning the case.
And then there is the part that requires people filing such lawsuits to lay out their cases in such great detail that then makes it real easy for the courts to dismiss the cases pretty early on in the process if the cases have no merits. Unlike the situation we have today, the new law will force people filing such patent lawsuits to spend time and money in doing some pretty extensive research on their patent infringement claims. And they are required to have all this stuff ready right when they walk through the courthouse doors. To be sure, guys like Maron and Carolla would be sitting pretty today if the proposed new law were already in place.
Yet, no matter how this thing ends for Maron and Carolla, there’s a lot more to the fight than just the two comedy gentlemen. In reality, for the reasons stated above, the entire comedy industry has a dog in this fight, indeed a big one. And Carolla was correct when he said: ‘They are suing me, but they are coming after you next.’ To be sure, this problem with the patent trolls isn’t going to go away on its own, especially because the patent trolls have already seen the dollar signs and will do all they can to stick around for the money. To solve the problem, the patent trolls will have to be forced out of the game.
In the end, the one great thing to come out of the Maron and Carolla situation is that their struggle has focused the comedy industry’s attention in a big way on this worsening problem of patent trolls. As end users of the podcasting technology, the comedy industry will do well to join forces with other interest groups in the ongoing campaign in Washington to pass the Innovation Act. This is where guys like Maron, Carolla, Jimmy Kimmel, Joe Rogan, Chris Hardwick, and Greg Fitzsimmons, plus all the other comedy superstars with a large microphone, who are supporting Maron and Carolla in their anti-patent troll campaign, can help get things done, And this is especially important now that both foot dragging in the Senate and election-year politics are threatening to slow things down in Washington with this bill. It’s time to finish the job by helping to push the bill across the finish line. That’s a smarter and more reliable way to save the podcasting space from further assault by patent trolls. Litigation alone just won’t cut it, even if the patent trolls lose. The law will have to change.