We've heard it shouted from the mountaintops more times than we'd care to mention: the patent system is fundamentally broken. But that manner of righteous indignation can often fail to make an impression on those attempting to live their lives unaffected on the sidelines, as hardware behemoths level a seemingly endless string of suits based on often overly broad language. One's perspective shifts easily, however, when targets change and the defendants themselves are no longer aggressively litigious corporations with an arsenal of filing cabinets spilling over with intellectual property, as was the case when one company used a recently granted patent to go after a number of podcasting networks.
When we wanted to get to the bottom of this latest example in a long line of arguably questionable patent litigation, we phoned up Julie Samuels, a staff attorney at the Electronic Frontier Foundation who has also been designated the organization's Mark Cuban Chair to Eliminate Stupid Patents. Samuels has been fighting the battle against dangerously broad patents for some time now, recently traveling to DC to support passage of the SHIELD Act (Saving High-tech Innovators from Egregious Legal Disputes), a congressional bill that would impose heavy fines against so-called patent trolls.
We spoke to Samuels about supposed trolls, podcasts, SHIELD and how those with microphones can make their voices heard.
Note: The owner of the podcasting patent in question declined to comment on the matter.
Can you break down this podcasting patent situation for us?
The podcast troll is just the latest in a really troubling trend of trolls going after end users or downstream users. That's particularly troubling because those targets aren't really in a position to navigate the patent system. In other words, they don't know what patents are out there. They don't know how to know if they're infringing them or not. You can't tell me that a podcaster knows how to check all the patents out there to make sure he or she isn't infringing one before they put their podcast up online, right?
Could we see an end to podcasts as a result of this?
So we've already heard of at least one podcaster who's taking his podcast off the air because he doesn't want to even risk being sued. Even if the troll were to litigate these cases, most of the podcasters don't make enough money to pay off the kind of damages that would justify the cost of litigation. So it really seems that this troll's just trying to extort a quick settlement and not actually go to court and litigate the merits of the patents, and the merits of whether there is infringement.
In cases like these, the EFF seems to go after the root of the problem, rather than specific litigators.
Right, and we're doing that
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