Choose To Chance The Rapids, Dare To Dance The Tide

No matter how I feel about his policy not to sell on iTunes, and I feel fairly strongly about it, you gotta love Garth Brooks.  Or at least the 58 bagillion people at the ACM Awards this past Sunday night do.

So.  Let’s just come right out with my point…the “podcasting patent” is no more.  I’m not quite sure how to feel about it because I never really saw Personal Audio as a troll (as evidenced here and here).  Why?  Well, chiefly because the company’s owner actually patented something himself rather than buying a patent on the open market for the sole purposes of extorting payments from (alleged) infringers, or, worse, purporting to be “inventor friendly” and convincing people to “innovate” for him and then monetizing whatever crap he can manage to patent out of the process.  You know, like Intellectual Ventures does.  Further, Mr. Logan spent his own money trying to commercialize the idea, something a troll would never do because the idea isn’t to add value of any kind, it’s to add volume to their wallets.

IP Troll Tracker

Joe Mullin puts it this way:

The history of Personal Audio dates to the late 1990s, when Jim Logan created a company seeking to create a kind of proto-iPod digital music player. But his company flopped. Years later, Logan turned to lawsuits to collect money from those investments. He sued companies over both the “episodic content” patent, as well as a separate patent, which Logan and his lawyers said covered playlists, that wrung verdicts or settlements from Samsung and Apple.

I’m not inside Mr. Logan’s head, but I’m imagining that it was less “turning to lawsuits to collect money from investments” as it was “Daaaang, those dudes are doing what I tried to do, and I even paid to patented the idea, and I think I’m owed something for my trailblazing.”  I love you anyway Joe, even though I disagree with you on this.

But as I said in prior posts on this topic, the issue for me in this particular case was never “should the patent have been issued”, it was “the patent was issued and I felt he had a right to assert it”.  Plus, I don’t have any first-hand knowledge that his tactics in trying to get licenses was trollish-like.  We’d know if it was, if anyone who received such a letter would be willing to upload it to That Patent Tool.  (HUGE HINT. PLEASE TAKE IT.)

I feel a little sheepish that it was EFF that took the patent down because I like those guys.  I was a total and complete bumbling idiot fangirl when I met Julie Samuels in person that one time.  I know, she’s not there anymore but she was when I met her and went all Kristen Bell and a Sloth.  In my mind, of course.

What would have saved us all this heartache would be if the USPTO actually did a better job of vetting patent applications and quit issuing stupid ones.  But there again, I’m not even sure this one qualifies as stupid, though the cases of prior art would seem that it was, at least in part, not non-obvious.  <— Double negative, FTW.  You’re welcome, Mrs. Fritchy my Junior English teacher.

Mr. Logan, through Personal Audio, chose to chance the rapids.  He patented an idea and tried to use it in a product in the market place using his own money, and then made an effort to capitalize when technology brought forth the right tools to make it all work.

And because I am incapable of not completing my lyric reference, he didn’t sit along the shoreline and say he was satisfied, he danced the tide until the music was stopped.

I had to get it out, y’all and now feel as though my next post must have quadruple the snark to offset the maudlin tone of this one!

JustSayin_small_New

IPTT

{Oh no you didn’t picture found here.}

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So Where Are You Taking Me To Dinner With Your $450,000, Adam Carolla?

Just read this update from Joe Mullin on the Adam Carolla whiney-baby fight against the “podcasting troll”.

We all know by reading this and this that I disagree with Joe on the labeling of Personal Audio as a patent troll in the general sense of the word.  As previously stated, he differs in my mind from the standard troll because he a) actually created a “product”, if you will, using the patented idea and sank his own money into it, and b) he sues people who are actually in the same line of business that his patent covers (as opposed to, say, people who have never come close to infringing on anything in their lives).

Adam’s a funny man, and I like his comedy but I don’t like when people are disingenuous.  So you’re telling me that Personal Audio moved to dismiss their case, and Camp Carolla said…no?  Whaaaaat?

What the Ars Technica article doesn’t state is when Personal Audio backed off. Their statement released yesterday is pretty ouchy, though:

“Adam Carolla’s assertions that we would destroy podcasting were ludicrous on their face,” said Personal Audio CEO Brad Liddle. “But it generated sympathy from fans and ratings for his show. Getting his fan base to continue to donate to his legal fund is a cynical exploitation of the publicity power he enjoys as an entertainer.”

cars-adam-carolla-top-gear-ko

 

If you want material for your comedy show Adam, I invite you to spend a day in Texas.  The funny just writes itself in the Lone Star State.  I’m wondering if it embarrassed you to have the suit dropped, because of this:

When Personal Audio first began its litigation, it was under the impression that Carolla, the self-proclaimed largest podcaster in the world, as well as certain other podcasters, were making significant money from infringing Personal Audio’s patents. After the parties completed discovery, however, it became clear this was not the case. As a result, Personal Audio began to offer dismissals from the case to the podcasting companies involved, rather than to litigate over the smaller amounts of money at issue.

Oooh.  It’s the “small amounts of money at issue” thing that got you, no?  Look, I get it.  I’d like to think we could all make bazillions of dollars off Teh Interwebs but not everyone can be a Goop.  Personal Audio is no longer coming after you though, so you’re swinging for the fences and no one’s even pitching to you.  Your site is still up, and there’s been no update letting contributors know that their funds aren’t needed anymore.

You’re behaving like the man in line at Sonic who got tots instead of fries and no matter how many times the clerk tells you she’ll gladly swap them out for what you ordered, you insist upon a lifetime of free slushies just because YOU WAS WRONGED, MAN!!

You got what you wanted, Personal Audio dropped the suit.  You’re now the one who’s wrong by leaving your crowdfunding site up and collecting money for something you no longer need.

 

JustSayin_small_New

 

IPTT

{Adam Carolla punch image found here.}

On The Definition Of A ‘Patent Troll’: Let’s Get Personal Once Again

Despite this review, I actually love Love Actually.  Mostly because of the wicked moves Hugh Grant pulls of to the Pointer Sisters, but also because of the way he defends Natalie, who’s ex evidently felt she was a little thick in the middle:

Oooooo, would we call her chubby?

The point is, of course, that he loves her and doesn’t see her that way, even though his staff and others totally do.

Hugh Grant Love Actually Dance

“I’ll take you down, I’ll take you down… where no one’s ever been before!”

 

I don’t love Jim Logan (no offense, but I’m a one man woman!) or Personal Audio.  But what I do feel is the need to break from my buddies over at EFF and examine once again if they, and by “they” I mean Jim, can truly and rightly be labeled a troll.

After suffering  through about 25 million ads sliding in and out at random locations (and the alliterative title), I was able to get through this article at The Economist.  I also read the comments, which is usually where the most fun is.  Also at Techdirt. If you don’t read the comments there then you’re missing 95% of the story.

The article talks about the most outspoken recipient of Mr. Logan’s attention, one Adam Carolla.  If I were Marc Maron, I would be a little irked that his fight is getting more play than mine, but whatever.  I don’t have a beef with Adam at all, and I’m sure he’s right irritated at having to deal with a lawsuit.  But let’s take a look at what we can really call a “troll”, because I don’t think the definition holds water in this situation.

From the article:

his company, ACE Broadcasting Network,being sued a year ago by Personal Audio, a non-practicing patentholding entity (a “patent troll”)

Hold on just a second.  I am at this very moment listening to an NPR podcast (how ironic) where they are playing a cassette tape of what they called the “very first podcast”.  If one of the main definitions of a patent troll is that they are non-practicing entities who don’t produce anything and simply sue over patents, and Jim Logan produced a cassette tape podcast, then how does that not immediately negate at least that part of the troll litmus test?

Now, Mr. Logan’s behavior should be analyzed because as I’ve said before and others have too, you have to look at a pattern of behavior to determine if someone is a troll.  It’s really not a hard and fast definition no matter how much my OCD brain would like for it to be.  The fact of the matter is that Personal Audio is indeed going around suing a lot of people.   Some have settled/taken a license and some are barking about it.  LOUDLY.  (Adam, I’m looking at you.)

While the suit does not detail a specific financial demand, Mr Carolla tells Babbage that he was asked for $3m, a sum he finds laughable based on his network’s revenue (which he does not disclose).

adamcarolla

Your season of Celebrity Apprentice was nuts. Aubrey O’Day? Really?

 

So, the suit didn’t detail a specific demand but Adam was asked for $3M.  That’s…inconsistent.  But the second half of that statement speaks to what I said in a previous post about this:

If Jim Logan had put it all out there in the demand letter and made a reasonable demand for a licensing fee by realizing that Adam Carolla, for all his funny, is not going to have the same resources as an Apple or Microsoft maybe he wouldn’t be so vilified?

I don’t know what Adam’s revenues are and I don’t know what Jim would think a reasonable license fee would be.  But I think that there has to be a somewhere in the middle on this kind of thing.  You cannot argue that Jim Logan didn’t try to monetize his patent with a product when it was issued, something troll are rightly accused of, even though the author of the article tries to do just that in both the above quote and this one:

First, Personal Audio fits the definition of a “patent troll”, or an entity formed for the basis of prosecuting patent lawsuits and licensing without manufacturing products or services.

You could, however, argue that he was ahead of his time, that the technology that would have made his idea more successful hadn’t gotten there yet.

This is why Personal Audio is now saying, “Look, I invented this.  I sunk $1.6* million of my own resources into trying to make it work but the timing wasn’t right.  Now it is, and I would like a cut of what you’re doing because it piggybacks off of what I was doing and oh by the way, I patented it and I have the right to exclude you from doing it unless you pay me a license.  That’s how patenting works.”

*I had incorrectly put a $4M figure here, thank you to my friend for the correction!

{Just to interject here, my beef is with the calling of Personal Audio a troll.  Arguments about prior art on the patent or whether or not the patent should ever have been issued are not the subject here.  Those are different and good arguments and I suppose we’ll see in May what the results of the IPR filed by EFF are.}

You know what would have helped both sides in this sort of thing?  A company like idealAsset, the “match.com for IP”.  If Jim had had a repository in which to place his IP asset, a searchable database with buyers and sellers hooked into it, he might not have had to go around suing.  And if Adam’s lawyers (and other podcaster’s lawyers) had a place where they could go looking to see if there was any IP surrounding what they were trying to do, they could have been matched up, gone on a date, and checked to see if there were any sparks flying that might lead to a permanent engagement or, dare I say it, marriage.

Maybe Jim did ask for decent terms in his original demand letters (if he sent them vs. just straight up suing).  I don’t know, he hasn’t entered any of them into That Patent Tool so we can see, and neither have any of the recipients.

All I know is this is one case where I feel it necessary to channel my inner Hugh Grant/Prime Minister and say:

“Ooooo, would we call him a troll?”

JustSayin_small_New

IPTT

{Adorable Hugh Grant image found here. All business-y image of Adam Carolla found here.}

Personal Audio Gets Personal, Survives The Lion’s Den

Talk about jumping into the lion’s den.  Jim Logan, founder of Personal Audio of “I’m suing all you podcasters, so git ready!” fame, agreed to participate in a forum on Slashdot.  And he’s still alive after the experience, which tells you that programmers and nerds really need to learn how to aim are just normal people at the end of the day. After reading the write-up on I AM Magazine’s blog, I have a better understanding of the issue here.  Jim Logan is the original inventor and holds the patent to the technology himself.  This puts him in a different category than your run of the mill IP Navs and Intellectual Ventures and other patent trolls in that he didn’t go out and bogart a stupid patent and haul off threatening everyone and their uncle with infringement. This is a great point here, made by yours truly and many other patent industry pundits:

For me the Personal Audio story is just another example of why a great deal of care is needed when debating trolls/NPEs/PAEs. Although it is tempting to see them as all the same, they are not.

No, they are not all the same.  I haven’t seen any of the demand letters that Personal Audio has sent out so either I’m not looking hard enough or they’re not posted anywhere.  But the I AM article makes an interesting point:

Increased transparency is also being mooted as a way to stop trolls. But Personal Audio is perfectly clear about what it is and who owns it; so new rules on that front will change nothing.

Did he explain his story in the demand letter the way the I AM blog did, or the way he did on Slashdot?  Maybe he did.  And this is one more thing that a national database of demand letters like I’m building at That Patent Tool would do:  it would expose not only the tactics of the true trolls by allowing me and others to triangulate information, it would also help those accused of being a troll by letting others see the full story. If Jim Logan had put it all out there in the demand letter and made a reasonable demand for a licensing fee by realizing that Adam Carolla, for all his funny, is not going to have the same resources as an Apple or Microsoft maybe he wouldn’t be so vilified? One of the things I want to do with That Patent Tool is build a community around the recipients.  In the case of Personal Audio, it would allow recipients to log on to the forums and talk about what’s going on, maybe form a loose consortium of buyers who can split the cost of a license?  You know, gather the smaller podcasters together, pool resources, and talk to Mr. Logan about a license that they could all take.  It’d be win-win:  Personal Audio gets to quit paying their counsel to send out letter after letter, recipients don’t feel like they’re being snatched by a beast from under a bridge and shaken down for an exorbitant fee: everyone’s happy.  Hugs? hug a troll It’s OK with me if you sing Kumbaya now. Just sayin’, IPTT {image found here: http://ultimategerardm.blogspot.com/2011/03/dealing-with-internet-trolls-cognitive.html}