by J.P. Davidson

[caption id="attachment_8425" align="alignright" width="240"] Image by: Electronic Frontier Foundation[/caption]

Like blogging and web video, podcasting has matured in recent years - from nerdy niche to viable independent media platform. Marc Maron is one success story: the interviews he conducts from his garage in LA go out to a massive online following. The show revived Maron’s career and even landed him a sitcom on IFC. But now Maron and thousands of other independent podcasters are under threat from a company claiming to own the entire concept of podcasting.

The company, Personal Audio LLC, sent letters to several independents last year, including Maron: “I got a letter from a patent troll. And the letter was basically a coercive invitation into licensing the patent – negotiating a fee for using this patent. It’s an extortion racket.”

“Patent troll” is the derogatory term for what’s technically known as an NPE – or non-practising entity. These companies own patents, for things like cloud-based file storage systems and online shopping carts, but don’t actually make anything themselves – instead they seek out companies that are using their technology and ask them to pay a licensing fee. If the company doesn’t pay up, they might get sued. Podcasting patent infringement lawsuits have already been filed by Personal Audio against Ace Broadcasting, How Stuff Works, and Togi Entertainment. This worries many independent podcasters, who can’t afford a costly legal fees. Adam Carolla, owner of Ace Broadcasting, is in the process of crowd-funding his legal defence. The campaign has raised over $300,000 so far. Another crowd-funding campaign by The Electronic Frontier Foundation has raised nearly $90,000 to “save podcasting”.

The EFF’s staff attorney, Julie Samuels (whose official title is “Mark Cuban Chair to Eliminate Stupid Patents”), says the deck is stacked against independent media makers: “So let’s say some patent owner claims that you’re infringing her patent – and you are positive you do not. Or you are positive that her patent could be invalidated. It’s still a lot easier and cheaper to pay for a license than to fight that battle in federal courts here in the United States. I mean that’s a really bad system.” Canadian podcasters aren’t immune from American patent laws either - any show made available in the US, even if it’s produced on foreign soil, could face infringement suits.

Personal Audio refused to comment on this story due to pending litigation, but in a press release their VP of Licensing, Richard Baker, was quoted as saying "It’s unfortunate that an inventor needs to resort to litigation in order to get a company to even respond to offers for amicable licensing discussions.” He went on to say that the company is just trying to earn a reward for all the time and money they put into the technology.

Several podcasters I contacted also refused to talk - perhaps understandably - for fear of drawing a bullseye on their backs. Others, like political podcaster Sam Seeder, aren't willing to go so quietly. He and others are raising the alarm – to create a united front among podcasters who may consider taking the easy way out, and paying license fees: “because we all literally have microphones – we could reach those people – and say hold off – don’t do anything. We can fight back on this.”

Podcasters won’t be silenced easily, and if recent crowd-funding efforts are any indication, devoted listeners aren’t about to give up either. And there is hope for the future - there are currently twelve pieces of legislation before the U.S. Congress that are attempting to rectify the broader “patent troll” issue, and Personal Audio’s podcasting patent expires in 2016.

That won’t help anyone accused of patent infringement before then though. Whether or not current podcasters owe Personal Audio licensing fees for use of their “invention” remains up to the courts.

 

JP Davidson is an independent radio producer and podcaster based in Toronto. In 2011 he founded the Canadian Sound & Story Workshop, a community for independents.