Court of Public Opinion: I’ll take Mr. Logan (inventor) over Mr. Carolla (infringer) any day…
Another Day, Another Infringer Wants To Screw A Real Innovator
So I’m reading with great amusement the typical whiny complaints by a Mr. Adam Carolla, apparently some kind of grade B television-radio celebrity who decided to join the Internet age a few years ago and like every other patent squatter caught red handed, can’t believe he’s being asked now to pay for using someone else’s technology without their permission. Like every good patent “squatter” Mr. Carolla has tried to deflect public opinion away from his own misdeeds and is sucking up to the “liberal drive by media” outlets (as some equally unsavory types refer to it) to portray him as the innocent victim in this parlor play.
This particular patent malfeasor’s story goes something like this: it seems AC turned to something referred to as “podcasting” in early 2009 because his talent wasn’t enough to keep his radio show from being canceled in 2009 and network television wasn’t buying his acting skills. To his credit, he is REALLY good at this podcasting business so his show is downloaded a lot, in fact, millions of times per month.
[In case anyone is wondering, this is all taken directly from Wikipedia, so if anyone has an issue with these “facts” go complain to them, and if they get corrected, I’ll be happy to issue a correction as well.]
Kudos to Mr. Carolla! His sponsors must be thrilled and I’m sure he’s making a ton of money! (but more on this later)
Anyhow it seems Mr. Carolla was sued by Personal Audio, a company that owns a patent on, you guessed it, a way of creating, organizing and distributing program episodes to media devices. The patent (US Patent No. 8,112,504) is here, and you can judge for yourself what you think, but try to keep in mind that there is a reason the Patent & Trademark Office spends so much time reviewing these cases with expert Examiners skilled in the particular technical field – to make certain only worthwhile inventions are given an actual patent grant.
The main inventor, James Logan was interviewed sometime back, and related that he invested $1.6m of his OWN money working on prototypes, and acknowledged that his invention was a bit ahead of its time (he filed in 1996). Keep in mind that in 1996 radio and TV still dominated the airwaves, and no one would invest in an “internet” media distribution system. Fast forward now, and the Internet has fat pipes for distributing multi-media, and consumers have lots of portable players. Of course Mr. Logan’s invention is popular!
So what is the dispute about? Simply this: Personal Audio had the audacity to insist ACE Broadcasting start paying for their use of Mr. Logan’s invention. Note Mr. Logan did not act as the fabled “troll” and demand that Mr. Carolla pay him before he could keep “podcasting”; rather he simply asked to be paid a fair price for ACE’s pervasive (hundreds of thousands of downloads a WEEK) ongoing use of his invention. After all, Mr. Carolla as late as summer of 2012 told the world (apparently whilst defending yet another round of sexist comments):
ACE Broadcastings “Trollathon” Request for Public Contributions Is A Farce
Alas despite his incredible fame and apparent commercial success Mr. Carolla is now seemingly in dire need of immediate financial assistance to make sure he can keep his trespassing b*** and the ACE Broadcasting umbrella on his beach of choice. Thus he is running a kind of Internet “trollathon” right now, begging for donations from the public to help him in his quest to avoid …paying the patent piper. This scheme no doubt was encouraged by legal counsel who have other ideas on which piper should be paid.
So apparently all that big “money” and big advertising dollars he had before are MIA. Call me cynical but methinks Mr. Carolla is using typical Hollywood accounting, you know the one where a movie makes a billion dollars at the box office, but on paper makes… negative profits.
My other favorite observation of this reality distortion field is how Mr. Carolla claims of course that his public begging for funds is really intended…for the little guy – you know, the numerous other “little podcasters” slated to be next the entrée on Personal Audio’s menu. As someone who’s been in this business for while I’ve got news for the little guys: relax! you ain’t worth it, and there’s no chance on this planet PA is going to “sue” any of you. It makes … zero sense. No patent owner with any sense (or at least one who values their time) wastes money going after small fries.
Here Mr. Carolla sounds like the large prize hog on the farm (and we all recall how trustworthy those pigs are from the Animal Farm story) ringing the bell and enlisting the help of the dumber chickens, ducks and squirrels by frightening them into thinking the farmer is going coming after them for the next dinner table. “unlike you illiterate dumb beasts, I read Farmer John’s menu for next week: Squirrel Bacon! If he can do it to me, he’ll do it to you” Again: NOT GONNA HAPPEN.
Look at the list of actual (not imagined) Personal Audio lawsuit targets to date: NBC, CBS, Discovery Channel, and TogiEntertainment. Yes, Mr. Logan is going to interrupt his pursuit of harpooning these giant white whales and throw a few pocket sized nets over the side to get all you minnows, too!
This tall tale is spun of course to curry favor again in the Court of Public Opinion, so Mr. Carolla appears to be that vigilant defender of… the little guy. Its the same formula used by the larger serial corporate infringers: “we’re really proposing this law to protect.. the little mom and pop folk.” This little facade is maintained all the while Mr. Carolla doesn’t spend his own money, but keeps his hand out for YOUR money to make sure he can afford the right sized limo when he shows up for his court date. He’s another wealthy poster boy of privatizing his profit while socializing his risk.
Does Mr. Carolla Have Any Choice?
In the end we have to ask: is this really necessary? does Mr. Carolla really have to pay Mr. Logan’s company? Of course not! Mr. Carolla can just STOP using Mr. Logan’s invention. Mr. Carolla can go back to the same crappy job he was fired from before if he doesn’t want to pay the price of playing in this new field. No one is forcing him to create, compile and distribute episodes of his (ahem) illustrious program over the Internet! The world did operate just fine with its entertainment through radio, TV, etc. before ACE Broadcasting showed up uninvited to this technology space.
Mr. Carolla pretends to be the leader of a merrymen, but they more like the poor planning paddler schmucks in Deliverance: didn’t scout the river or the locals in advance, with predictable results. If they end up trespassing in hostile territory they have only themselves to blame.
Who Really Deserves The $$ ?
And finally, in closing, one must ask – even if Mr. Carolla is entirely wrong and SHOULD pay Mr. Logan something as a matter of law because as a law abiding population we value property rights – is there some reason why Mr. Carolla is entitled to some special patent dispensation here? Who exactly is the more deserving of these two individuals?
Mr. Carolla (AFAICT from his bio) is a talented “performer” – but other than having made a lot of money to pay a bunch of programmers to put his broadcast on the Internet, just how exactly is “ACE Broadcasting” an “innovator, “ a “mom and pop” operation or some other class of protected species that should not pay for their fair use of someone else’s ideas? Wikipedia also paints a rather less than lofty picture of his exploits as well, complete with a summary that his talents consisting of spending “….much of the show ranting about various topics, from fart jokes to extended parodies of radio morning shows, complete with weather and traffic reports.” Oh and it seems y he was fond of insulting gays, various ethnic groups, and anyone else he could belittle – again while comfortably sheltered in a studio behind a microphone. [Again, this is all taken from Wikipedia, and if anyone has a beef, take it up with them.]
This is type of person we’re sheltering from paying what’s due to a small inventor?
In contrast Mr. Logan (aka the “Boogeyman” in this story) invested a sizable sum to bring about an innovation that Mr. Carolla can use, but just not for free. Mr. Logan’s record shows a long history of working in technology and bringing novel ideas to fruition.
So, folks, please, before you get all weepy eyed watching the fundraiser Thursday night – and open up that checkbook to help out one of Jimmy Kimmel’s “kids” – try to remember who the really deserving party is on all of this. And maybe send them a check instead!
After further review I find it even more amazing to me that the talented Mr. Carolla, his innovative podcasting “genius” team and well-heeled lawyers have not figured out yet that they can easily circumvent the Personal Audio patent, and then not have to pay …a cent going forward. They only need to remove one or two features from their platform, and that will make it impossible to infringe the claim they are challenged with (claim 31). This is called a “design-around” in patent law, and is the main source of innovation in this country: i.e. patents force companies like ACE Broadcasting to come up with their own clever techniques, instead of just imitating someone else.
I’ve reproduced claim 31 from the patent; I’ve also taken the time to annotate what are the clear “weak” points of this invention based on my 30 years of doing this. IMO it probably would not take very much to tweak the ACE podcast system in a way that it would not literally do what the claim says:
Apparatus for disseminating a series of episodes represented by media files via the Internet as said episodes become available, said apparatus comprising:
one or more data storage servers,
one or more communication interfaces connected to the Internet for receiving requests received from remotely located client devices, and for responding to each given one of said requests by downloading a data file identified by a URL specified by said given one of said requests to the requesting client device,
one or more processors coupled to said one or more data storage servers and to said one or more communications interfaces for:
storing one or more media files representing each episode as said one or more media files become available, each of said one or more media files being stored at a storage location specified by a unique episode URL;
from time to time, as new episodes represented in said series of episodes become available, storing an updated version of a compilation file in one of said one or more data storage servers at a storage location identified by a predetermined URL, said updated version of said compilation file containing attribute data describing currently available episodes in said series of episodes, said attribute data for each given one of said currently available episodes including displayable text describing said given one of said currently available episodes and one or more episode URLs specifying the storage locations of one or more corresponding media files representing said given one of said episodes; and
employing one of said one or more communication interfaces to:
(a) receive a request from a requesting client device for the updated version of said compilation file located at said predetermined URL;
(b) download said updated version of said compilation file to said requesting client device; and
(c) thereafter receive and respond to a request from said requesting client device for one or more media files identified by one or more corresponding episode URLs included in the attribute data contained in said updated version of said compilation files.
There you have it; I have given Mr. Carolla and his team plenty of sign posts now, but I’m not going to connect all the dots as well. I’ve done the hard work, they can figure out the rest. For a fraction of the monies he is raising in his “trollathon” he could pay someone half as talented as me and a couple of programmers to change his system so it could never infringe.
You might ask, “but surely his lawyers have already told him how to do this”? You’d likely.. be wrong. Patent defense counsel love big fat paying clients who are easily cajoled into “fighting” cases – because it means great fees for years to come. As he already admits, they’ve been paid $100k and the case is barely a few months old! Why settle a case or propose a course of action to the client that will kill the golden goose? Not good for business! Until it looks like the case is lost, they will keep milking the cash cow. So I predict many more years of… fee feasting in this litigation.