EFF wins case to protect podcasters from patent threats

The podcast is safe, after an appeals court threw out a case from Personal Audio protesting against the dismissal of its so-called “podcasting patent”. The company had been sending legal threats to multiple podcasters since 2013, arguing that it had a patent on a “system for disseminating media content representing episodes in a serialised sequence”.

That patent is no longer considered valid thanks to the work of the Electronic Frontier Foundation (EFF), which challenged Personal Audio’s patent in the court, raising more than $76,000 in donations via its “save podcasting” campaign. On Monday, the US Court of Appeals for the Federal Circuit affirmed an inter partes review ruling, allowing anyone to challenge a patent at the US Patent and Trademark Office.

The EFF’s case hinged on the fact that there were podcast-like productions that dated back to before the 1996 patent was filed. CNN’s Internet Newsroom – which started in 1995 – was shown to have episodes, an updated compilation file and a predetermined URL for said file. Personal Audio lawyers argued that CNN’s stories were “not different episodes” because they are neither “a series nor are they a programme”. But the courts ultimately sided with EFF thanks to other shows such as Quirks & Quarks that also emerged ahead of the patent.

In other words, podcasts are now safe from patent litigation – well, almost safe. Personal Audio could still take the case to the Supreme Court.

But if Personal Audio has been sitting on this patent since 1996, how come this has only come to a head now? To understand that, you need to revisit the 1990s…

A long time coming

Personal Audio started life in the 1990s, hoping to strike it rich with a digital media player – an MP3 player before the iPod made the concept mainstream. It didn’t get anywhere, but the company’s founder Jim Logan discovered that the patents he’d filed in the process were useful in lawsuits against other companies. Another of the company’s patents covered the concept of playlists, and as a result Personal Audio was able to get money out of a few larger companies – including $8 million from Apple.

But in 2013 Personal Audio expanded its lawsuits to include podcasters, falling back on Patent No 8,112,504 and its “system for disseminating media content representing episodes in a serialised sequence”. Legal demand letters were sent out, and it became quite a high-profile battle, with comedian Adam Carolla raising a $500,000 legal defence fund after his own podcast was challenged. His battle with Personal Audio was eventually settled, with an interesting note in the company’s companion press release: that it wouldn’t sue any podcasters “making modest amounts of money from podcasting”.

Meanwhile, Personal Audio continued to chase bigger fish. In September 2014, the company’s podcasting patent convinced a jury in Texas that CBS owed Personal Audio $1.3 million.

You can see Personal Audio’s own justification for its dogged pursuit of podcasters here, but it’s something of a moot point now: the company hasn’t attempted to sue anyone since 2015, when it confronted Google over other audio patents, and now Patent No 8,112,504 is no longer a threat. It could well take the case to the Supreme Court, but for now, podcasters rich or poor can carry on about their business without the fear of legal action.