Episode 89 — Authentic Redneck Dialect

[BrettMorris 1862]

Great episode... but I was actually annoyed by one of the ad breaks, the one about "patent trolls." Really, Matt? I thought you were smart enough to not buy into mass hysteria. Or is it because "This American Life" and Mark Maron are (wrongly) spouting off about this issue, you felt you had to complain about it before becomeing informed too?

 

For the record, I'm a patent attorney, and I have been quitely gritting my teeth about this passing fad of supposed "news" podcasts taking shots at patents just because it seems fashionable to them. Please try to fully inform yourself on something before wasting us, your listeners, time with this BS.

It's not "fashionable" it literally threatens our existence. From what I understand, they somehow claim a catch-all patent on distributing digital episodes, basically podcasting itself, which would mean everybody would have to pay this "company" a prohibitive license fee to even be on air, which feels like a shakedown. They don't produce anything themselves, they just sue people for a living I guess? This isn't just Matt buying into some media hype, Earwolf and pretty much every major broadcaster are facing legal threats from this and hold the same position, he's reading on behalf of Earwolf.

 

If you have a counter opinion, feel free to share it rather than just berate the entire industry's position.

[Ghost of HST 71]

1-post troll and I suppose this isn't the place for it but I have heard some similar innuendo although never anything concrete. I know the opposing side did a Reddit answer-me thing but it seemed like convoluted BS so I'd like to hear some counter opinion too...

[MichaelMischnick 1]

It's not "fashionable" it literally threatens our existence. From what I understand, they somehow claim a catch-all patent on distributing digital episodes, basically podcasting itself, which would mean everybody would have to pay this "company" a prohibitive license fee to even be on air, which feels like a shakedown. They don't produce anything themselves, they just sue people for a living I guess? This isn't just Matt buying into some media hype, Earwolf and pretty much every major broadcaster are facing legal threats from this and hold the same position, he's reading on behalf of Earwolf.

 

If you have a counter opinion, feel free to share it rather than just berate the entire industry's position.

 

Here is my response....

 

1. No it does not "literally" threaten your existence. You've just bought into the hype of the EFF that it does. The EFF is historically anti-patent, so you can't exactly trust its ability to be impartial on the issue. I will get into this more below, but the fact that the company that owns the "podcast" patent doesn't actually practice the invention means that they will not be able to enjoin (e.g., stop) podcasters from continuing to podcast. At most, they will be able to get a reasonable royalty (and that is if they can confirm the validity of the patent in court).

 

2. Based on your use of the phrase "from what I understand," I take it you have not read the patent or even the claims. Is that a fair assumption? Because I have. Most of the claims are directed to devices (e.g., computers and mp3 players) so that the patent holder couldn't even sue podcasters directly (they would actually have to go after individual podcast customers, which would be cost prohibitive). There is one set of claims that are to dissemination systems. But even those claims aren't as "catch all" as you seem to believe. They are still very detailed claims with many, many, many ways that a podcaster could modify their system and not infringe (referred to in my business as "designing around"). In fact, the claim is clearly written to cover iTunes, and not the podcasters own systems. It would not cover, for example, a podcaster who has a webpage with links to download each of the episodes of their podcast.

 

3. "Which means everyone would have to pay this 'company' a prohibitive license fee to even be on air" - again, not true. This is just you buying what the EFF is selling. As I noted above, a license for a patent can only be for a "reasonable royalty." This is in the patent statute. If, for example, Mark Maron and a bunch of other podcasters decide to band together and fight the patent (which I have no problem with them doing, and actually support) and they lose on infringement and validity of the patent, the most that the patent owner can get is a reasonable royalty, which by definition cannot be "prohibitive" (since if it was prohibitive it wouldn't be "reasonable" at all). The law has been changing over the past 10-15 years to really crack down on what is a "reasonable" royalty so that the value, in damages, that a patentee can get is commensurate to the value that the technology of the patent provides. In the case of podcasts, while the dissemination of the media is certainly critical to customers actually being able to enjoy the media, it is a small part of the actual "value" of the media. Obviously, it is super conventient to just sign on to iTunes and get I4H or Comedy Bang Bang delivered to my computer and then uploaded automatically to my iPhone, but a lot of people (myself included) would get it even without this convenience built in. In short, the value of podcasts is the podcasts themselves and the entertainment they provide. Because of that, the royalty for this patent would actually be quite small. (As an aside, I find it comical that you took me to task for "berating" Matt (who I am certain is a big boy and can take anything in my post that could be considered "berating"), but you use the mocking quotes around "company" to describe the patent holder. Did that really add anything constructive to the conversation?)

 

4. You also seem to have baught into the company line that Personal Media (the company that owns the patent) is a "patent troll." (e.g., "They don't produce anything themselves, they just sue people for a living I guess?") This company is certainly closer to a "troll" than companies like Apple or Microsoft, where they file patents on the products they sell and sue competitors on those products. But, this is misleading and kind of a smear campaign which isn't totally accurate. Personal Media actually did try to make products back in the mid-1990s (when this patent was filed). When they filed their "podcasting" patent, they were attempting to manufacture and market personal audio devices. They just didn't succeed in that business. But they did file patents on some of the IP that they developed (again, back in the mid-1990s). And they held onto that IP for over 15 years and kept prosecuting the patent in the patent office (meaning they kept paying their attorneys for over 15 years to try and get what they belive they were entitled to). Not only that, but t

 

A more accurate definition of a "patent troll" is a company that buys up patents from down on their luck inventors, amassing large pools of patents, and then suing lots of companies and agreeing to settle for one-time licensing fees. That isn't the case here. The company that invented the podcasting patent is the very same company that is asserting it. They are just trying to get some value out of what they themselves invented. They also aren't seeking a one-time "shake down" type of licensing fee (at least not from what I've heard). They are seeking a small, ongoing royalty that, at most, slighlty reduces the profitability of podcasting, not decimates the whole industry. As far as I could find, they haven't even sued anybody yet (trolls tend to sue first, seek payment later). They are negotiating (and now attempting to manage the PR backlash thanks to the EFF and people reactively spouting off to their podcasting audience about how this will "destroy" the industry) and attempting to figure out what is fair. What are they supposed to do if they think they legitimately invented this technology (which, as I'll get into below, they have a valid argument)? Are they just supposed to say "We paid all this money to invent this technology, and then we spent even more money to get the patent for it. I guess we should just give it away for free because Marc Maron thinks we're dicks. Oh well."?

 

5. The EFF, Earwolf, and everyone else seems to be taking for granted that they didn't really "invent" podcasting because it's just so well known... or at least that seems to be the position. Here's the thing, they filed this patent in 1996. Think about that. There weren't even iPods yet in 1996. There was some rumblings of personal audio devices back then, but they didn't really come onto the market until considerably later (somewhere in the 1998, 1999 time frame). MP3s weren't really a thing in 1996. Yes, the MP3 codec was developed before 1996, but it certainly wasn't really used by the public until 1998 or 1999. Napster, which probably did more to popularize the idea of digitized media than anything, didn't come out until 1999. The idea of a "podcast" did not exist until somewhere around 2003 or so. iTunes didn't provide for podcast until 2005, 9 years after the "podcasting" patent was filed.

 

In short, these people were way ahead of the curve on the idea. Sure, podcasting seems obvious now, in 2013, but it certainly wasn't obvious in 1996. Why are we smearing this company for being way ahead of their time? Is it simply because you might make a little less money than you thought?

 

I prefer I4H to be not so reactionary. I like I4H because its comedy is deeper than that. I like I4H because one of the things it tries to do is make fun of other people who are so ridiculously reactionary (such as in the "Crap on YouTube" and "Case Closed" segments). I find it ironic that Matt Besser is basically being the mouthpiece for something that is equally reactionary. That is why I called out Matt on this.

 

If that is "berating," I guess I'm a bully.

[Ghost of HST 71]

I sincerely apologize for calling you a troll and thank you very much for your detailed and considerate reply.

I am also glad that you clarify that in fact you support the patent being challenged and this obviously requires financial support. I can understand that the issue is perhaps being blown out of proportion but I'm sure you can easily see how difficult it is for people to believe that you could patent something as generic as recording something and then uploading the data so that users can click and download that data. I work in translation and occasionally look at patents but my eyes start to glaze over immediately...Nonetheless, I imagine that somewhere within their patent there could be an argument to be made. The "reasonable royalty" aspect is interesting but that would have to be settled within the suit, meaning that, again, lawyers' fees are a necessity so I really don't find a problem with them asking for contributions even though they are perhaps overstating their case.

I'd like to see someone more closely involved take a look at your arguments of course. I have heard at least one other podcaster hint that it is being blown out of proportion...

[BrettMorris 1862]

 

Here is my response....

 

1. No it does not "literally" threaten your existence. You've just bought into the hype of the EFF that it does. The EFF is historically anti-patent, so you can't exactly trust its ability to be impartial on the issue. I will get into this more below, but the fact that the company that owns the "podcast" patent doesn't actually practice the invention means that they will not be able to enjoin (e.g., stop) podcasters from continuing to podcast. At most, they will be able to get a reasonable royalty (and that is if they can confirm the validity of the patent in court).

 

2. Based on your use of the phrase "from what I understand," I take it you have not read the patent or even the claims. Is that a fair assumption? Because I have. Most of the claims are directed to devices (e.g., computers and mp3 players) so that the patent holder couldn't even sue podcasters directly (they would actually have to go after individual podcast customers, which would be cost prohibitive). There is one set of claims that are to dissemination systems. But even those claims aren't as "catch all" as you seem to believe. They are still very detailed claims with many, many, many ways that a podcaster could modify their system and not infringe (referred to in my business as "designing around"). In fact, the claim is clearly written to cover iTunes, and not the podcasters own systems. It would not cover, for example, a podcaster who has a webpage with links to download each of the episodes of their podcast.

 

3. "Which means everyone would have to pay this 'company' a prohibitive license fee to even be on air" - again, not true. This is just you buying what the EFF is selling. As I noted above, a license for a patent can only be for a "reasonable royalty." This is in the patent statute. If, for example, Mark Maron and a bunch of other podcasters decide to band together and fight the patent (which I have no problem with them doing, and actually support) and they lose on infringement and validity of the patent, the most that the patent owner can get is a reasonable royalty, which by definition cannot be "prohibitive" (since if it was prohibitive it wouldn't be "reasonable" at all). The law has been changing over the past 10-15 years to really crack down on what is a "reasonable" royalty so that the value, in damages, that a patentee can get is commensurate to the value that the technology of the patent provides. In the case of podcasts, while the dissemination of the media is certainly critical to customers actually being able to enjoy the media, it is a small part of the actual "value" of the media. Obviously, it is super conventient to just sign on to iTunes and get I4H or Comedy Bang Bang delivered to my computer and then uploaded automatically to my iPhone, but a lot of people (myself included) would get it even without this convenience built in. In short, the value of podcasts is the podcasts themselves and the entertainment they provide. Because of that, the royalty for this patent would actually be quite small. (As an aside, I find it comical that you took me to task for "berating" Matt (who I am certain is a big boy and can take anything in my post that could be considered "berating"), but you use the mocking quotes around "company" to describe the patent holder. Did that really add anything constructive to the conversation?)

 

4. You also seem to have baught into the company line that Personal Media (the company that owns the patent) is a "patent troll." (e.g., "They don't produce anything themselves, they just sue people for a living I guess?") This company is certainly closer to a "troll" than companies like Apple or Microsoft, where they file patents on the products they sell and sue competitors on those products. But, this is misleading and kind of a smear campaign which isn't totally accurate. Personal Media actually did try to make products back in the mid-1990s (when this patent was filed). When they filed their "podcasting" patent, they were attempting to manufacture and market personal audio devices. They just didn't succeed in that business. But they did file patents on some of the IP that they developed (again, back in the mid-1990s). And they held onto that IP for over 15 years and kept prosecuting the patent in the patent office (meaning they kept paying their attorneys for over 15 years to try and get what they belive they were entitled to). Not only that, but t

 

A more accurate definition of a "patent troll" is a company that buys up patents from down on their luck inventors, amassing large pools of patents, and then suing lots of companies and agreeing to settle for one-time licensing fees. That isn't the case here. The company that invented the podcasting patent is the very same company that is asserting it. They are just trying to get some value out of what they themselves invented. They also aren't seeking a one-time "shake down" type of licensing fee (at least not from what I've heard). They are seeking a small, ongoing royalty that, at most, slighlty reduces the profitability of podcasting, not decimates the whole industry. As far as I could find, they haven't even sued anybody yet (trolls tend to sue first, seek payment later). They are negotiating (and now attempting to manage the PR backlash thanks to the EFF and people reactively spouting off to their podcasting audience about how this will "destroy" the industry) and attempting to figure out what is fair. What are they supposed to do if they think they legitimately invented this technology (which, as I'll get into below, they have a valid argument)? Are they just supposed to say "We paid all this money to invent this technology, and then we spent even more money to get the patent for it. I guess we should just give it away for free because Marc Maron thinks we're dicks. Oh well."?

 

5. The EFF, Earwolf, and everyone else seems to be taking for granted that they didn't really "invent" podcasting because it's just so well known... or at least that seems to be the position. Here's the thing, they filed this patent in 1996. Think about that. There weren't even iPods yet in 1996. There was some rumblings of personal audio devices back then, but they didn't really come onto the market until considerably later (somewhere in the 1998, 1999 time frame). MP3s weren't really a thing in 1996. Yes, the MP3 codec was developed before 1996, but it certainly wasn't really used by the public until 1998 or 1999. Napster, which probably did more to popularize the idea of digitized media than anything, didn't come out until 1999. The idea of a "podcast" did not exist until somewhere around 2003 or so. iTunes didn't provide for podcast until 2005, 9 years after the "podcasting" patent was filed.

 

In short, these people were way ahead of the curve on the idea. Sure, podcasting seems obvious now, in 2013, but it certainly wasn't obvious in 1996. Why are we smearing this company for being way ahead of their time? Is it simply because you might make a little less money than you thought?

 

I prefer I4H to be not so reactionary. I like I4H because its comedy is deeper than that. I like I4H because one of the things it tries to do is make fun of other people who are so ridiculously reactionary (such as in the "Crap on YouTube" and "Case Closed" segments). I find it ironic that Matt Besser is basically being the mouthpiece for something that is equally reactionary. That is why I called out Matt on this.

 

If that is "berating," I guess I'm a bully.

Well you clearly have, at the very least, a defensive posture about this, if not a personal stake in the fight, which worries me more about talking too much since it's a legal matter. I am not a patent expert, it's not my role to go toe to toe on this. I definitely personally support strong intellectual property laws, but they can always be improved. I appreciate your opinions, but I'm sure there are many who disagree. But I'll say that this isn't as abstract a fight as you think it is. You make a lot of assumptions about what has and hasn't already happened. Personal Audio has definitely taken actions. This isn't just mindless greed from podcasters.

[Hot - Slunch 772]

I prefer I4H to be not so reactionary. I like I4H because its comedy is deeper than that. I like I4H because one of the things it tries to do is make fun of other people who are so ridiculously reactionary (such as in the "Crap on YouTube" and "Case Closed" segments). I find it ironic that Matt Besser is basically being the mouthpiece for something that is equally reactionary. That is why I called out Matt on this.

 

If that is "berating," I guess I'm a bully.

 

So, Matt Besser reading the same ad copy that a multitude of podcast hosts have read on their shows is him personally being reactionary? Is it reactionary to read a stamps.com ad too? You know he didn't write that copy, right?

 

They clearly used a word like 'patent troll' to engage the younger, internet listening audience, because they use words like 'troll' regularly with a negative connotation.

 

It's a fucking ad break, chill out.

[MichaelMischnick 1]

Well you clearly have, at the very least, a defensive posture about this, if not a personal stake in the fight, which worries me more about talking too much since it's a legal matter. I am not a patent expert, it's not my role to go toe to toe on this. I definitely personally support strong intellectual property laws, but they can always be improved. I appreciate your opinions, but I'm sure there are many who disagree. But I'll say that this isn't as abstract a fight as you think it is. You make a lot of assumptions about what has and hasn't already happened. Personal Audio has definitely taken actions. This isn't just mindless greed from podcasters.

 

I do not have a personal stake in this fight. If I was one of the attorneys for Personal Audio, I certainly wouldn't be allowed to post on a comment board about it. But, as I said in my original post, I'm a patent attorney so I do have a professional interest in how patents are portrayed in the media. To that end, it annoys me greatly when people throw around the term "patent troll" without really thinking about it. I probably dislike true patent trolls even more than you do, since they give my profession such a bad name... but I really don't believe Personal Audio qualifies, as I discussed in my longer post. Obviously, you disagree. But you are clearly coming from a position with much more of a personal stake than I am (since your company is either being directly targeted, or you have reasonable suspicion to believe you are), so it is very possible that the situation is clouding your judgment.

 

I apologize for being misinformed about the fact that Personal Audio had actually sued companies. My memory of the case (which is limited mostly to the summary of it on the Planet Money podcast) was that they were negotiating with podcasting networks and hadn't actually sued yet. This does change the facts a bit, but since Personal Audio developed this technology with the intent of actually using it and then held on to the IP themselves rather then selling it to "true" patent trolls like Intellectual Ventures is such a strong indication of the non-trollish behavior that the fact that they have sued doesn't really change my final conclusion.

 

But again, if they legitimately believe that they invented the concept of podcasting, what are they supposed to do when podcasting networks tell them to fuck off? Sometimes, unfortunately, a lawsuit is the only way to get people to actually come to the table (obviously, I have no idea how reasonable Personal Audio is being in its negotiations... but with the information that is publicly available, they are doing exactly what any reasonable, non-troll company would do).

[MichaelMischnick 1]

 

So, Matt Besser reading the same ad copy that a multitude of podcast hosts have read on their shows is him personally being reactionary? Is it reactionary to read a stamps.com ad too? You know he didn't write that copy, right?

 

They clearly used a word like 'patent troll' to engage the younger, internet listening audience, because they use words like 'troll' regularly with a negative connotation.

 

It's a fucking ad break, chill out.

 

Matt has come control over what is actually read in the ad breaks on I4H. He basically said as much in one of the ad breaks in the most recent episode (with Casey Wilson et al.) when he went off script. And if the ad script is reactionary, wouldn't the person reading the ad copy (who is free to ad lib off of it) also being reactionary by following it?

 

Clearly, "patent troll" is a much more pejorative term to me than it is to you. I feel it should be reserved to companies that actually are "trolling" with their patent, rather than what Personal Audio is doing.

 

And I don't know why the fact that this was in an ad break should matter. If I completely disagree with the content of the ad break, shouldn't I be able to voice my opinion about it without being shouted down? You mentioned stamps.com ad breaks. If the stamps.com ad copy was personally offensive to you, wouldn't you at least be upset about it? I didn't realize my opinion was any less valid simply because it had to do with the commercial aspect of the podcast versus the artistic portion.

 

Again, I think Matt Besser is a big boy and can handle the criticism. And please stop with the bullshit that because this was an ad break it is something that is too small to bring up. Besser has devoted hours and hours of I4H to his complaining about things that seem equally minor to me ... and that is one of the reasons I like the podcast. To his credit, he's also devoted lots of time to complaining and fighting against big and important issues too, like gun control... so I don't mean to belittle the rants about "minor" things at all.

 

In short, this actually matters to me... ad break or no. So you fucking chill out.

[klemjohansen 748]

Matt has taken a position on several things during the course of the show. Patent trolls have to be the least controversial. Claiming ownership over a developed idea a decade after its inception based on an intentionally vague patent application is ridiculous. Regardless of whether the people behind this attack succeed or are beaten back into their hidey holes like SCO was a few years ago, people certainly have a reason to voice their opinions about the abuse of U.S. patent law.

 

Also, you appear to be Vizzini-ing the word "reactionary."

[BrettMorris 1862]

Yeah I was gonna say, that word doesn't mean what you think it does.

[JacobCrites 4977]

Do people realize you can fast forward through the ads?

[MichaelMischnick 1]

Claiming ownership over a developed idea a decade after *before* its inception based on an intentionally vague patent application is ridiculous *ridiculously impressive*.

 

FTFY. Remember, these people filed for their patent in 1996, looooooooong before podcasting was ever tried.

 

Also, you appear to be Vizzini-ing the word "reactionary."

Hmm... Merriam-Webster includes the defintion "relating to, marked by, or favoring reaction." True, I'm not using it in its normal meaning of "relating to conservative politics," but that isn't a requirement of the word. I was using more as the antonym of "open-minded" (again, from the dictionary definition).

 

It certainly isn't "inconceivable" that I would use it in this context.

[klemjohansen 748]

Did you know that the use of the word "pedantic" is almost always pedantic?

 

Also, did you know that the vinca plant, with its pentacle-shaped bloom, is so named because "vinca" is Sweedish for "five?"

 

It's actually not. The Sweeds have at least forty-six words for the number five, and none of them are "vinca." Actually, that's not true, either- as far as I know. I won't bother to look it up because, like most things in this may-fly brief life, it just isn't worth it. That doesn't keep me from telling people this, though. The bit about vinca, I mean. I break it out whenever discussing botany with people, which happens surprisingly often. Actually, I should probably wonder less about my propensity for fibbing about plant names and more about why I hang out at the city greenhouse so much when I have no interest in that stuff, none at all.

 

Back in college someone told me a story about botany groupies, young women who for some reason are irrationally aroused by any sort of plant trivia. I have now come to suspect that this tale was entirely apocryphal, but that hasn't dimmed my enthusiasm for the idea. So, now I spend most weekends hanging out at the local botanical gardens in hopes of one day hearing those magic words: "You can name five major species of under-sea flora by their Latin names and describe their life cycles- let's do it." Sadly, this has never come to pass.

 

Every once in a while, some stranger will point admiringly at the delicate five-petalled blossom along the north wall of the glass house, and I will smile with a sigh. Someday. I sigh again just in case the last one didn't convey the proper level of poignancy. Someday.