the absurdity of patent trolls

The red bar shows the number of patent lawsuits from patent trolls. Photo from NPR.

It’s no secret that I’m a fan of podcasting. I also like finding bad patents. Unfortunately, now bad patents are threatening podcasts. An unsuccessful inventor named Jim Logan is using an extremely vague old patent to sue popular podcasters. People like Logan and his company, Personal Audio, are known as “patent trolls,” sometimes referred to formally as PAEs (patent assertion entities) or NPEs (non-practicing entities). Instead of actually making products, patent trolls just own patents and use them to get other companies to pay them licensing fees.

What’s especially troubling about these trolls is that they are not just targeting large technology companies who can defend themselves: they are going after small businesses and individuals. MPHJ, a company that says it owns patents for scanning documents to email, sent over 9,000 letters to small businesses demanding the purchase of a license costing at least $1,000 per employee. Another company, Lodsys, sent letters demanding payment to app developers for Apple products because they were using in-app purchasing in their apps, a feature that is part of Apple’s operating system. A third troll, Innovatio, tried to get hotels and cafes to pay as much as $2,500 per location for providing their customers with Wi-Fi. Fortunately, Cisco, Netgear, and Motorola intervened and Innovatio only received around 3.2 cents per device.

Last but not least, Personal Audio is suing popular podcasts like the Adam Carolla Show for absurd amounts of money. In an interview with fellow podcaster Marc Maron, who was also sent a letter by Personal Audio, Carolla said that the company originally asked him for $3 million. Once Carolla found out that it would cost $1.5 million to fight the case in court, he started a crowdfunded “defense fund.” The patent that Personal Audio claims covers podcasting is ridiculously nebulous. As an article from the Electronic Frontier Foundation (EFF), a nonprofit organization dedicated to “defending civil liberties in the digital world,” explains, the patent describes Logan’s invention as an “apparatus for disseminating a series of episodes represented by media files via the Internet as said episodes become available…” Furthermore, in an episode of NPR’s Planet Money podcast titled “When Patents Hit the Podcast,” Marc Maron is interviewed and reads from the letter he received. It says, “The…patent covers important technology related to automatically identifying and retrieving media files representing episodes in a series of those episodes becoming available.” Planet Money explains the origins of Logan’s patent:

Back in the nineties, Jim Logan started a company called Personal Audio. The concept was simple — people could pick out magazine articles they liked on the internet, and his company would send them a cassette tape of those articles being read out loud. The cassette tapes didn’t catch on like Jim hoped, but he had bigger dreams for the idea behind them.

He dreamed that one day you wouldn’t need a cassette player, you would just be able to hear smart people talking about whatever subject you wanted, and that audio would be magically downloaded to a device of your choice. He says he dreamed of podcasting as we know it today.

Now Jim Logan did not create the technology to podcast. He himself is not a modern-day podcaster. But he did get a patent on that big dream of downloading personalized audio, and he claims to have the patent on podcasting.

So, in other words, Logan just came up with an idea that is like podcasting but did not actually invent how to do it. The situation isn’t unlike if I were to patent the idea of a flying car and when someone actually invents it, I demand that they pay me a license fee. It’s just silly.

It’s one thing that companies are using overly broad patents to collect undeserved licensing fees, but the fact that they are targeting people and businesses that had nothing to do with creating the “infringing” technology takes the unjustness of the situation to a whole new level. Alex Blumberg of Planet Money says, “It’s like if you had a patent on the automobile. If you were the guy who invented the car, imagine if instead of going after General Motors and Ford, you went after the drivers…”

Companies, organizations, and the government are taking action against patent trolls. For example, different retail trade organizations teamed up and created a campaign to raise awareness about patent trolls, President Obama proposed legislation to prevent patent trolling, and the EFF filed a challenge against the patent being used to sue podcasters.

If you would like to learn more about patent trolls and changes to the system that could prevent them, I recommend reading the article “Everything You Need to Know About Trolls (The Patent Kind)” from Wired.

There is also an interesting TED Talk from a man who beat a patent troll who sued his company for infringing on a patent for “the creation and distribution of news releases via email.” Seriously.

happy birthday is copyrighted

Yes, you read that correctly. “Happy Birthday to You,” that ditty you’ve known for as long as you can remember and still hear numerous times each year, is copyrighted. The melody of the song, which is the most performed song in the world, was written by Mildred and Patty Smith in the 1893. They wrote it for another song with the title “Good Morning to All,” and neither of them are thought to have written the lyrics to “Happy Birthday to You.”

Warner/Chappell, a subsidiary of Time Warner, claims it owns the copyright to “Happy Birthday to You,” and makes an estimated $2 million dollars a year off the song. According to the New York Times article “‘Happy Birthday’ and the Money It Makes,” in 1989, the year Warner/Chappell purchased the song, it was featured in at least 50 films, T.V. shows, and commercials. However, there is debate as to whether the song is actually still under copyright. George Washington University Law School professor Robert Brauneis expresses doubt that “Happy Birthday to You” is still copyrighted in the article “Copyright and the World’s Most Popular Song.” Brauneis gives three main reasons why the song is not under copyright anymore: First, its copyright may have never been renewed, since the only filed renewals were for piano accompaniments and unusual additional lyrics. Secondly, the first publication of the song was not in the name of the correct copyright holder, which would have resulted in the song losing copyright at the time. Thirdly, it is unlikely that Mildred or Patty Smith wrote the lyrics to “Happy Birthday to You,” and in order to claim itself as the copyright holder, Warner/Chappell must be able to trace ownership to the original authors(s) (3).

There is currently a lawsuit against Warner/Chappell. The lawsuit, which was filed by a filmmaker wanting to use the song in a documentary about it, aims to have the court acknowledge that “Happy Birthday to You” is in the public domain. Click here to read a New York Times article about the conflict.