Were these the first podcasts?
Were these the first podcasts? Caitlin Kenney/NPR
The comedian in question is Marc Maron. He does a popular podcast, called WTF, out of his garage in California. It's an interview show, with other comedians and artists. Maron recently found an extraordinary letter in his mailbox. This letter said, basically, that by doing his podcast, out of his garage, he was violating a technology patent. His podcast was, according to the letter, illegal.
"They sent a copy of the patent with this letter," Maron says, "which looks like a large bunch of legal gibberish."
When Maron started up his podcast, he didn't think he was stealing anyone's invention. He's a comedian. He'd never seen a patent before.
A couple of other podcasters have received similar letters like this — Jesse Thorn, host of the public radio show Bullseye, for one. NBC, CBS and The Adam Carolla Show have all been sued.
The person behind these letters and lawsuits is Jim Logan, who claims to have invented podcasting, with a company called Personal Audio. Logan has a patent that he claims covers podcasting, part of a family of patents that dates back to October 2nd, 1996. That means, according to the letter his company sent out, every time someone creates a podcast — and distributes it — that person owes his company money.
Logan says back in the mid-'90s, he imagined a personal audio device that could "interact with the internet and your preferences to pull down, to your personal player, all the personal stuff you wanted to listen to."
"The idea of downloading playlists to your audio player, and podcasts, are how the world has gotten around to implementing those ideas," says Logan.
He tried to build an MP3 player and bring it to market. It didn't work out, but he did manage to put out a much lower-tech version of what he feels is the same idea. He brought the manifestation of this idea to our interview. It was a stack of cassette tapes. The idea was, you'd be able to pick from a selection of newspaper and magazine articles, and his company would send you a tape of those articles being read out loud.
The tapes didn't get much traction. And over the next 10 years, Logan says, he kind of forgot about these old audio patents — until 2007. That's when, as he tells it, his patent attorney, Charlie Call, was working on a project that involved iTunes. "I wasn't a big music listener, and Charlie Call wasn't, either," Logan says. "We didn't own iPods. We didn't use iTunes, so it was all kind of foreign to us."
When Call did discover iTunes, Logan says, he realized that our patent "was being infringed by iTunes."
Logan's company, Personal Audio, sued Apple over the ability to create a playlist. The jury sided with Personal Audio and awarded it an $8.5 million payout. Apple appealed, Personal Audio appealed back, and there was a settlement of some kind. The results are not public.
In the eyes of the law, Logan says, it doesn't matter that his company did not create iTunes or the iPod. "This is the road map," his licensing guy, Richard Baker, says, "that would tell someone how to do podcasting, how to do MP3 players." Even if the guy who had invented iTunes never read Logan's patent, publicly available on the U.S. Patent website, "that does not matter."
Right now that's how the system works, and a lot of people think this is a big problem. The fact that someone could even get a patent this broad, some say, means the patent system is not working like it's supposed to. Rather than encouraging more innovation, it's hurting it. Fear of being smacked down by an old patent could keep someone from trying something new. The Electronic Frontier Foundation, an advocacy group, is planning to challenge the patent at the patent office. It claims the patent is too broad, and too obvious.
To Logan, when he uses patents to make back money he lost on his failed business, that's the system working well. He says, having a patent makes it safer for people like him to try to build their next new idea, because of the possibility that they can make their money back later, through licensing fees.
The people he's threatening to sue, of course, don't see it that way.
"I'm not a tech company," comedian Maron says. "I'm a guy who turns on his computer and does his thing!"
Yesterday, in President Obama's call for reform of the patent system, he may have allied himself with Maron's side. He specifically called for more protection for what he calls "end-users of products containing patented technology." People who aren't even trying to make a new product — just turning on their computers, for example, and doing their thing.