Podcast Episode: Saving Podcasts from a Patent Troll

Podcast Episode 110

Imagine getting a letter in the mail—and then another, and then another—telling you that if you don’t pay $25,000 to a company you’ve never heard of, you’ll have to shut down the small business that you’ve worked for years to build.

That’s exactly the situation faced by a group of podcasters several years ago, including comedian Marc Maron, who hosts the WTF podcast. They were being threatened by a patent troll called Personal Audio, which claimed that podcasters were infringing on a patent that covered “disseminating media content in a serialized sequence.”

On this episode of How to Fix the Internet, Marc Maron and his producer Brendan McDonald join EFF’s Cindy Cohn and Danny O’Brien to talk about how they decided not to give in, and how podcasters came together to support EFF’s work to defeat the patent.

Click below to listen to the episode now, or choose your podcast player:

You can also find the MP3 of this episode on the Internet Archive.

Patent trolls like Personal Audio don’t make products or services themselves, but instead use their patents to threaten litigation against others, unless they get paid a patent licensing fee. They’re a particular problem in the software industry, which has always been a bad fit for patents. EFF has been fighting against patent trolls in Congress and in the courts for more than 15 years.

In this episode, you’ll learn about:

• The prior art, or evidence, of earlier technology that EFF was able to present to courts to prove that the so-called “podcasting patent” was invalid
• How the landmark Alice v. CLS Bank Supreme Court decision has helped make patent law better, but still didn’t solve the problem of patent trolls
• Why patent trolls are a drain on innovation
• How we should think about which ideas should be building blocks for the public good, and which should be owned
• Why the community that came together around the podcasting patent fight was critical to EFF’s victory
• How EFF prevailed when the patent troll tried to get the names of EFF donors

Marc Maron has been writing and performing comedy for over 20 years. He’s the host of the WTF Podcast, and is on Twitter at @marcmaron.

If you have any feedback on this episode, please email [email protected].

Below, you’ll find legal resources—including links to important cases, books, and briefs discussed in the podcast—as well as a full transcript of the audio.

Resources

Patent Trolls:

• Patent Trolls
• 2011 in Review: Patents Misused to Stifle Innovation
• Fighting For A More Open, Balanced Patent System: 2021 in Review
• Apple Says Patent Troll Case Should Be Dismissed Because [REDACTED] but the Public Should Know Why
• Who’s A Patent Troll, and Who’s An Inventor?
• EFF Patent Project Gets Half-Million-Dollar Boost from Mark Cuban and ‘Notch’

Personal Audio, LLC:

• EFF Files Challenge With Patent Office Against Troll’s Podcasting Patent
• Podcasting Community Faces Patent Troll Threat; EFF Wants to Help
• EFF Wins Final Victory Over Podcasting Patent
• EFF Wins Court Ruling Upholding Invalidation of Bad Patent That Threatened Podcasters

Intellectual Property Rights Legislation:

• Saved By Alice
• Bad Day for Bad Patents: Supreme Court Unanimously Strikes Down Abstract Software Patent
• Alice Doesn’t Block Good Patents, It Protects the Public By Requiring Real Invention
• Victory: Court Orders Patent Bully Garfum To Pay Attorney’s Fees
• Our Patent Review System Is Ten Years Old. It’s Time to Make It Stronger
• Senators Push To Study “Unstable” Patent Law, While Patent Trolls Cheer Them On

Transcript

Marc: The thing that I could not get over was that it is straight up grifting. It’s a total shakedown and it doesn’t even claim to be anything else. There’s no other way to look at it. This isn’t like, like you said, they aren’t trying to engage these patents or move a technology forward. All they’re doing is stifling creativity and technology, stifling creativity, and business to work this loophole, to grift people out of money any way they can by  retrofitting old patents onto new technologies. And that seems to me, and it always did to be completely immoral and not appropriate.

Cindy: That’s comedian and podcast host Marc Maron. Marc was an early pioneer of podcasting with his show WTF. In fact, Marc’s was probably one of the first podcasts that many folks ever listened to. But one day he saw all that threatened with a legal claim from a company that said it had a patent on podcasting itself.

Danny: Marc and his producer, Brendan McDonald, are joining us today to talk about what it was like to face the threat of being shut down by a patent claim. They’re going to tell us how they turned from victims to activists, fighting back and raising awareness against companies who abused the patent system. 

Cindy: We’re going to dig in to how to fix the internet by building a patent system that protects creators like mark and Brendan, and maybe even you. 

Cindy: I’m Cindy Cohn, EFFs executive director, 

Danny: And I’m Danny. O’Brian a special advisor to the EFF. Welcome to How to Fix the Internet. 

Cindy: Marc you’ve been a stand-up comedian for more than 30 years. And since 2009, you’ve been hosting the wildly popular twice weekly WTF with Marc Maron. You and your producer, Brendan, worked together on the show. I’m excited to talk to you about how you rallied together with other podcasters and EFF to push back and ultimately win on a topic that is admittedly a little geeky. Thanks for being on the podcast. 

Marc: Yeah, thanks for having me. It was a crazy time. 

Cindy: And welcome Brendan.

Brendan: Thanks Cindy.

Cindy: Marc, before we get to how to fix the problem, let’s start with your story. Tell me what happened when you found out that a company called personal audio was claiming ownership of the patent on podcasting. 

Marc: Well, I didn’t know what those letters were. I think they came through the actual mail.

Marc: Isn’t that right? Brendan? 

Brendan: Yeah.

Marc: Didn’t they come through the actual mail. It was just this letter with this letterhead that looked like it was a, you know, just made up and it said, you know, we own the patent or you owe us licensing fees of $25,000 or something crazy. And I’m like, this is silly. This isn’t anything. And then Sam Sedar, a guy I used to work with Brendan and I, he was like, this is real. And I’m like, what do you mean it’s real? So then I had to learn, you know, what a patent troll was, what this meant, what it meant for everybody. They sent three letters. It was getting crazy. There were other podcasters listed on the letters and, and I didn’t know what to do. And Brendan was like, yeah, this is a real thing. And I’m like, what does that mean? Does it mean we gotta pay him money or a podcasting is over or that, you know, I need a new  machine? I don’t know what it means. 

Brendan: My initial sense of it was that the biggest threat was going to be if we made contact with these people, like the number one thing: do not reciprocate any kind of communication here, and let’s just try to build a strategy. But building a strategy was hard as Marc, you know, I’m sure remembers we were really, you know, we still are an independent operation, but back then, in those days of podcasting, like everyone was pretty much an independent operation. There wasn’t a lot that we could actually do as a collective, unless we mounted some type of strategy around that.

Marc:  We had to educate ourselves, first and foremost about what it really meant. Because none of us were really making that much money. And there seemed to be some assumption in the language that we were billionaires. So once we started to understand what this meant and you know, what that small town in Texas meant and what that sympathetic judiciary meant and what these like weird kind of a storefront addresses with no office in them meant, that it was just this racket, then we had to figure out how to push back. And we had to figure out how to do it as a community, which we weren’t essentially a community, but there was a group of us who were podcasters and we did each other’s shows and we were in contact with the bigger podcasts at that time. So we had to figure out how to come together and solve this problem.

When we really start to dig into this thing and you start to realize what it would take to defend ourselves, we had to have like a meeting, this sort of like weird clandestine meeting. It like over at Adam Corolla’s house and he has a full bar, like an old style bar built under his swimming pool. And it was me and Corolla era and a representative from Nerdist and someone from Jay Mohr. And I think someone from Kevin Smith’s operation there, and we’re all sitting there going like, this is real. And Kevin or Adam sort of like, Hey, I don’t know. You know, he’s like, yeah, let’s see my lawyer, this, that, and the other thing. And I was freaking out and Jeff Ulrich from Earwolf was freaking out because we realized that, no other podcasters could took this seriously because they only aimed it at us.

Cindy:  I want to back up a little bit and, you know  you referenced a couple of things. It was a small town in Texas. There is a, uh, the Eastern district of Texas is become a center piece for litigation around patents. And so patent cases go there. It is an area that is very focused on patents, which means it’s got a bunch of judges who take these kinds of cases, and it is a location where a lot of these entities called non-practicing entities set up shops so that they can sue in Texas. So all of this is the kind of thing that I think you know, ordinary people shouldn’t be expected to know. And you guys had to learn kind of at the point of a lawyer dagger.

Danny: I want to just ask specifically when you got these letters, what did they claim and what did they want from you Brendan? 

Brendan:  It was a very broad statement and it was encouraging outreach. That was the number one thing. Please reach out to us because you happened to be in violation of our patent, whatever the number was and we would like to, you know discuss a licensing arrangement, like all of this, that was apparently like, you know, in the wording of this, a fait accompli, you know, this is it, this is done. You’re just going to have to go along with this. So, but very general, there was definitely a sense that. We’re not trying to threaten, but just coerce. I think we wound up looking at three of these letters at once because we had basically ignored the first two, like as in not ignored them, like read them and didn’t take them seriously. Like did not even open them and had not seen them. So we had like three letters back to back and, and, uh, they just seemed, uh, fishy, like Marc was saying from the start, these didn’t seem like things that we, we should be engaging with. 

Marc: It was like a weird a cash grab. You know, it was a cash grab. Like they were like, give us $25,000, you know, because, you know, we own the licensing of this thing that you don’t understand. And then when you really start to focus on the technology they were focusing on, it was like, that’s crazy. That’s like saying, you know, you owe us money for drinking that soda because of the pop-top we own the patent and on that, it was nuts.

Danny: And what was the patent on? Did they ever say that? 

Marc: Yes. It was a, you can read the patent. It was some sort of menuing a daily updating menuing system or something. 

Danny: What? 

Brendan: Yeah. Essentially like, like,  aggregation. And so it was, it was retrofitting, any kind of playlist apparatus to mean this was solely intended to be the delivery o periodical information. And like, that was what it was hinging on was this, this was like invented as a way to basically have podcasts around magazines and newspapers back from 15 years before. 

Marc: Yeah. But it was like a, it was like a  cassette technology. It was like, you know, the original application of the technology in question was wasn’t even in the medium of podcasting or, or it didn’t even see that it was, it was primitive, digital stuff.  

Cindy: One of the problems that we have seen in the patent system is that we’ve got this whole flock of patents that take, um, uh, something that you might do without a computer at a computer, and then claim that this new thing is patentable. And the podcast patent was, was one of many that, that we worked on on that. And it’s one of the reasons why people, um, including EFF feel like, you know, so many of these patents that are software patents are really just that. 

Marc: When you start to realize that they’re just kind of retrofitting this stuff onto old. You know, onto newer technology and you start to realize, I think both Brendan and I realized at the same time is that it’s a shakedown. It’s clearly a shakedown. There’s no validity to it whatsoever. It’s a business of, of built on grifting and you know, it may, and then you start to read about how these patent trolls can get payouts from large technology companies that can afford to throw a couple million dollars to stop a lawsuit. 

But if these guys were organized, a big fear for me was if they really wanted to organize themselves around this patent and push it through, everyone would have to pay a licensing fee to these people, depending on the percentage of income that they had or what we’re willing to prove. And they could have made a fortune if they were organized, but they were just grifters. So it wasn’t about that.  

Brendan:  The scary thing to me was seeing the, um, the, the previous kind of cases that involved, uh, you know, patent assertion entities and how much, how long the legal process was. And that was my bigger fear was not so much that, you know, we were going to have to start paying out, but that the, the, the kicking off this fight was going to basically make doing the podcast, uh, uh, just not viable anymore. We were going to be underwater with legal fees, just trying to defend ourselves. We have to fight this before the actual lawsuits start.   

Danny: So this was pretty early on in podcasting. Not like now we have like thousands and thousands, but it was, it was far enough along that people were kind of making a name and getting pretty successful about it, like worth, hitting them up for a few dollars. So you decided to fight back, right. And, and like, how did you strategize? How did you decide what that looked like? Cause you didn’t want to get into a court case, right? 

Marc: It was sort of a slow, weird process because we wanted to fight back. But we knew that not unlike a divorce, that the shakedown was, they will bleed you until you gave them this base amount. So the assumption they made is like, here’s where all the money is. But very few of us were making that much money. Certainly not enough money to even afford, you know, half of a lawsuit that it would take. So we ended up meeting with this consultant guy, you know, a bunch of us, again at Carolla’s garage, who was like the troll warrior. Like, you know what you remember that guy’s name. 

Brendan: It was Drew Curtis, who was, uh, uh, from the website FARC. 

Danny: Oh, wow. Drew. 

Marc: Yeah. He sat us down the group of us and said, all right, it’s going to cost about 300 grand. I got a plan. And we’re like, wait, what? We can’t, I can’t afford it. You know? And then ultimately what happened is because Brendan and I had worked with you guys  to raise money for some other stuff you were doing, we had a relationship with you. And I thought I said to Brendan, I said, this has to be in their purview to take this on and we should make them aware of what’s happening in our industry around this. And it was like a hail Mary pass. We were like, come on EFF you got we got to help us. And that was the, that was the strategy. And when you guys took it up, we were like, man, I’d tell you it pays to have friends. I tell you. 

Cindy: Well, we were so happy to do it. You know it you’re right, EFF has long been concerned about the problems with patents. We’d been doing work in this area for about a decade before you guys got caught up in this, you know, we call them patent trolls, right? Cause you have to pay them money to get along your way. We have something called the Mark Cuban chair to eliminate stupid patents, a hilarious name that Mark, uh, made up, uh, that Mark Cuban made up. But we also, you know, have been tracking stupid patents of the month and other sorts of things. And, so we were, you know, both, you know, in this way that, uh, lawyers are sometimes both delighted and horrified to hear from you know, horrified that this was happening to you and delighted that we could do something to help, but really this was a team effort. You guys, you guys did a lot of work to organize and bring in the very nascent podcasting community around this. 

Marc: It was a, it was a panic. And I, and I got to tell you, it kept escalating and, you know, I’m already panicky. And we had reached out to other, you know, to, uh, nascent, networks who were building networks and trying to build a relationship with and trying to make them guarantee that they would protect us from patent trolls. There was, uh, a network starting to build up and I said, do you have the money to make this go away? Because if not, we were not interested. 

Cindy: Wow. So you really had to make like big decisions based upon this threat. This wasn’t something that was just a little thing on the side. That was very central. 

Marc: It was crazy. To me it was like it’s to me, it’s like a thriller movie. 

Danny: part of what happened here, that’s different from when we usually deal with patents is that people kind of deal with it on their own, right. They get this letter and they’re scared to talk to anyone and, you know, they might be competing with the other people who get that letter. That’s another thing that happens. Right? You send it to everybody. Who’s kind of trying to fight it out with everybody else for a market share. One of the things I took away from this story is that everyone talked to each other and, and, and ganged up to fix this. Is that something that was because of the early nature of the podcasting community or is that what comedians are like or what? 

Marc: For me, I know all these guys and at the beginning of podcasting, as it exists now, or is it did then, uh, many of us were in the same business and we all kind of knew each other. And there was a period of time where we were all doing each other’s shows. We were all very supportive, primarily, you know, the, the original 10 or so that were, you know, kind of making a headway and we were peers. So it was really a no brainer. To sort of check in with everybody, certainly Corolla, you know, and you know, it’s not like we’re buddies, but we’re certainly in the same world. He was in the hot seat, so it was natural for us to say, you know, what is happening? Ultimately we needed information and we needed to, to, to make it, to raise awareness in the community that this was a real threat,  many people were not registering it as a threat. And there was a core group of us, certainly me and Brendan and Ulrich who were like, this is, this is real and it can shut us down. 

Danny: So Brendan, how did you raise awareness? 

Brendan: Well, I think I realized at the time that the thing, the leg up that we had, the entire thing that we, that our product was based on was having a direct line into listener’s ears every time we put the product out. And all of this stuff we’re talking about about the growth of podcasting and how we were all starting to see a little movement and we didn’t want it to die off and we wanted it to thrive and we couldn’t let a threat like this happen. That was all possible because of this devoted audience and this, these followings that our shows were creating. And I just knew as long as we started speaking about what this was, it gave us an advantage that other people fighting patent troll fights didn’t have we had this platform.

Marc: Yeah, we can troll the trolls 

Cindy: well, and it’s inspirational. It’s important you know, we work with so many people who get these kinds of patents, threats, who feel so alone. EFF has a whole session of what we do on these patent things, which is to try to bring transparency, to try to make it clear to people who get a threat about what’s going on with all the other threats. And the thing that was so fabulous about working with you guys is you did all of that work yourselves. You guys figured out that there were other people that this was happening. You pulled the community together. And as part of that, you were able to stand up and it, it worked in tandem with the legal work that EFF was doing, you know, in the, in the direct challenge to the patent.

Marc: Well, I forgot that we were busting out him on the show and it definitely got through, you know, like there was, I remember there was conversations like, should we shouldn’t we. It was like, why not? And we started sort of pushing back and getting people worked up and, you know, they’re cowards really. And, but I’ll tell you, man, when, when you guys started working on it and you had all those lawyers working on it, and I learned what prior art was. There was a point where I think people were sending us prior art. They were sending stuff to us to try to prove our case. Once we started talking about it publicly, and it was kind of amazing to learn the structures of how these patents work and what you needed to sort of, um, you know, death star it, to blow up the death star.

Danny: So the way this worked was, was that EFF and the Berkman Center of the Internet and Society at Harvard put together a petition to the patent office. A sort of very limited ability to challenge patents after they’re issued. And one of the arguments you can use in that is what you said, right is that there’s nothing new in the patent. This is not actually novel. And that there was something called prior art available. 

Cindy:  It was fun because we use some of the stuff that you guys collected. We also used an old EFF friend, Carl Malamud had a thing he called geek of the week that he did back in the nineties where he interviewed geeky people. He actually interviewed me, I got to be a geeky person. But there was also some online things from the Canadian broadcasting system that we used and some online broadcast by CNN. So there were things that were happening, you know, long before, uh, personal audio showed up with their, their patent that we were able to use. And, we were able to win at the patent and at the PTO at the patent and trademark office. But you know, this went on for a long time. Personal audio appealed it. We had to go through the courts and it was finally  the Supreme court finally turned down personal audio’s requests to have this appealed one more time. And that was when the moment it was finally over.

Marc: It made it to the Supreme court? 

Cindy: We went to the Supreme court and the Supreme court said, talk to the hand, the lower courts were right. Uh, and, um, so personal audio took it all the way to the U S Supreme court. That was really the victory at the very very end.

Marc: Oh my God. Now I am mad at them again. 

Danny: That’s the plan. So, I mean, how did it feel to just have something like this hanging over you while you’re still trying to make a business out of this Marc?

Marc: It implied a vulnerability that, you know, we had no control over seemingly and that, you know, whether or not something like this could happen again, who knows, but if it weren’t for us educating ourselves, bringing the community together and then working with you guys to, to elevate our understanding of, of what we could do to fight it. I mean, it made us feel a little better, but you don’t, you know, when you’re just,  all of us podcasters are just a bunch of people going like, wait, I just need a mic. And it’s like, you, you don’t think about this stuff. So, you know, really realizing that you’re still in the world of technology and you’re still in the world of, that’s much more complicated than you can ever imagine, but yet there’s no real reason.  There’s no reason for me to think about, you know, this daily menu loading system every day. But it made me think about it like am like, can they just come after us for every piece? Like I said before. So it caused a tremendous amount of anxiety for me for a long time. So the victory was, you know, not unlike, my divorce. S0…, but the, the fact that this guy brought it to the Supreme court just makes me, I just, now I still have a problem with him. I thought it was over.

Cindy: Well, it is over the Supreme court. Didn’t let them go. 

Marc: Who is this idiot? What do they do? They just, what are they just sitting on a pile of patents going? Like, let’s try this one. 

Danny: Yeah. That’s actually what happens is that you, you collect together patents. So you, you become like the patent troll forums by buying up other people’s patents. So they don’t, I mean, this is one of the things, right? It’s in a classic patent troll situation. They don’t want to exercise the pattern. The idea of patent is, you know, you have like, I know Edison or something and they make a, they make a player piano and then they build a player piano is. But these,  these patent trolls just have the patent. They have no plan and producing a podcast of their own. And I think that’s one of the ways you can spot them as opposed to someone, you know, genuinely going, Hey, I invented that, you know, you should really, you should really pay something over to us. 

Marc: The weirdest thing about the process was like accepting the fact, like, you know, like trying to put it into perspective. Like I thought you, you know, and I’m not a big business guy and I’m not, you know, an entrepreneurial thinker. But like I said before, I thought that the worst thing that could happen was that you, you know, these personal, personal audio had their stuff together, that they could create, uh, you know, a broad sort of licensing. For all podcasters. And I thought like, all right, well, you know, if that’s the hit we got to take, all right. So be it. But they, they don’t even think like that. Their big mistake was thinking we had money.

Danny: “How to Fix the Internet” is supported by The Alfred P. Sloan Foundation’s Program in Public Understanding of Science, enriching people’s lives through a keener appreciation of our increasingly technological world and portraying the complex humanity of scientists, engineers, and mathematicians. 

Cindy: We work with people all the time who get these patent threats,  and we can represent a small amount of them. And we, we do it for free we’re pro bono, but like many people can’t afford the lawyers even to respond to the letter. 

Marc:  NO!

Cindy: And, um, and, and, you know, or even, or those who can, then they just pay the money and they go on, they just pay the toll to the troll and, and go on. And, and so this was such a special situation because everything was in line so that we could do it, but you know, it wasn’t without lots of twists along the way. You know, one of the things that personal audio did, um, was that they tried to force eff to turn over the names of all the people who had given to support the fight. You know, people were freaking out because some of these were podcasters who weren’t yet in the sights of personal audio. And they were terrified that if their names got out that they, they would, you know, find themselves on the back end of a, of a cease and desist or a lawsuit. 

Marc: Oh my God, these guys, oh my God, these guys were terrible. Like I just pictured this as this room, this army, this war room of lawyers, like just go and it, you know, in, in the name of the, cause it was all very exciting. I really see it as a movie of some kind of,  I don’t think it’s, you know, it’s not like the Facebook movie or it’s not that exciting of a movie, but that, that’s how I pictured it. 

Cindy: Well, it felt that way. And you know, we were lucky. We went to, we were lucky. We had a good judge who followed the law and, and recognize that people have a first amendment, right to donate to a cause anonymously. And that, you know, absent some evidence that there was something untoward going on. The judge was not going to just turn over all the donors to personal audio. So we, we won a first amendment victory along the way to the podcasting victory. 

Marc: Who’s writing this book? 

Brendan: I will say though, that, you know, as, as we’re talking about this in a very positive light, there were things that didn’t work out while we were doing this and that to me, you know, it sticks with me that, you know, for instance, one of the routes we were going to take since obviously like massive legal fees were off the table for us and we had to find help somehow. And, thankfully it did pan out in the work that eff did, but we also tried to go the political route with this. There was bipartisan legislation that was on the table and it just didn’t, politically wound up being a non-starter and that was very discouraging, you know, thankfully our, the other track we were on working with a nonprofit, panned out, but, the political process was, was not as optimistic.

Cindy: Yeah. Yeah. Sometimes it’s good to have three branches of government. Right. We try to keep this podcast focusing on a positive future. Like, how do we fix the internet? What does it look like? And we fixed the internet, and I think you’ve hit on one of the things that is an ongoing, um, uh, an ongoing challenge for all of us, but also what it’ll look like if we fix it is that we’re going to need to probably fix the patent law a little bit.

Marc: I think you have to turn the whole thing off for a few weeks. 

Danny: That’s how. 

Cindy: Unplug it and plug it back in and let it reboot.

Marc: Yeah. Let’s have a conversation culturally without it on. 

Cindy: Yeah, I, well, I think that’s true. And you know, this is where some of these, you know, where software patents end up in this world where people are talking about pharmaceutical patents and other kinds of patents. And so in the congressional conversation, trying to separate some of this stuff out and focus on it has been difficult, but it’s, it’s still centered to the work. And, and it’s tremendously important because we, we had this tremendous victory for you guys, but we need to have victories for all the people who get threatened by trolls.

Danny: Some folks identify the problem. Basically you can patent anything as long as there’s a computer on it. And those are either software patents or business patents. Right? So they patent a way of doing business. We could just throw that whole side of the patent business out. And I mean, Marc, does that strike you as a good solution or from what you saw of the patent system as it is ? 

Marc: That would have to take a whole restructuring, uh, of, of how we understand patents and a reckoning with these people that look for specifically those things to grift. 

Cindy: You’re, you’re getting at the nub of it, of course which is that, you know, that we have to have a solution that protects the creators, the people who really do patentable work. I don’t think patents themselves are, are, are bad. They can be very wonderful, but we need to protect the creators and we need to weed out the Grifters in this situation.

Danny: And also targeting this like non-practicing entities. Right? I think that’s the thing that sticks out is that if you feel it’s a grift, when you’re not even talking to the inventor, you know, you’re not even talking to someone who, who has, who said, look, I made a thing, right? You’re talking to someone who just sends those letters out. It’s hard to. 

Marc: And somebody who took it all the way, the Supreme court, knowing that, I mean, they knew it that we’ve obviously put a bug up their butt or they wouldn’t have done that. I mean, like, you know, we, I mean, why would they, they wanted to get all the names to see who was making $12, you know, so they could, what, they didn’t even have the wherewithal to, to shake five of us down for 25 grand.  So what was he going to do with all those names? But it obviously upset him enough and it seemed like to me, it feels like a pride thing that they had the bread from other grifts to really push us all the way through to teach us a lesson. That’s how I take it. 

Danny: One thing we haven’t talked about Brendan is the whole west Texas court scene. Did you have to deal with that? 

Brendan: We didn’t have, we’d never gotten dragged into it. We just wound up educating ourselves about that particular district, you know, mostly seeing other case studies of what had happened there. I believe there was This American Life episode about an, a software developer. When they replayed that episode, they do an update and they interviewed Marc for that. And I remember listening to Marc’s interview that got tacked onto the beginning of that. And I heard Ira Glass being like, yeah, if they wind up in that district, they’re going to have to pay. And I was like, man it’s, it’s like a, it’s a done deal if this happens. And that’s the thing we have to avoid. We, we, we actually have to, you know, fight this now and fast, like timing was of the essence, otherwise we were going to be in trouble. 

Cindy: We’ve had some good luck in the Supreme court. I think the courts are actually more amenable to some of this. And sometimes when we get in Congress, although in EFF, we fight in both of these, but there was a case called Alice that came out of the Supreme court a couple of years ago that that began to shrink patent ability. It didn’t go nearly as far as we’d like it to be. One of the problems with this that, that we  spend a lot of time on at EFF is the lack of transparency, right? I mean, we know that there’s this court in the Eastern district of Texas, but we don’t know a lot about what goes on there. And if you’re the next person in line who gets dragged there, it’s very difficult to figure out even what’s happened with the very same patent that you’re being threatened with. So, you know, w we wanted to take on stupid patents, but we’ve ended up taking on transparency a lot to put more people into the position that you guys kind of happen to be in because your community was so small, um, so that people can really see what’s going on and figure out, you know, did this patent already lose? 

Marc: And also what Corolla ended up paying out? I think, I think Carrola got sued and he paid a cup, like a 250 grand maybe. I don’t remember. 

Brendan: And I don’t want to speak for his team and exactly what they did, but I do think we were on like a kind of separate track at that time where, where what we were doing, the work we were doing with eff at that point had, you know, already become a public call for prior art and a, you know, a kind of aggressive fundraising campaign around this issue. And I think while that was happening, Adam, uh, you know, in a way that he thought it was helpful, had some kind of settlement with them that said, we are not going to go after these independent podcast producers anymore, meaning them. And I think they wound up putting our name in it and we were not consulted on that. We didn’t like when, when they said, all right, you guys are free from being, um, a target of this, uh, patent troll. Now we were like, well, it’s not done yet. It’s it’s, it’s over. It’s not over. We have to make sure this thing is not going to threaten podcasting as an industry. So, you know, whatever Adam Corolla’s team actually did that again, I can’t speak for them in doing it, but I do know it didn’t alter the course we were on at all at the time. 

Danny: No. it’s understandable that people try and work out some sort of agreement. Another thing that like the bigger companies do, like, the sort of Googles of the world is they start competing by buying up their own patents and so there’s this patent war chest. And so the idea is like mutually assured destruction, right? If you come at us with one of your patents, we have a patent on like getting out of bed in the morning and we’ll sue you with those. So at the same time, as like all these little fights are going on, there’s this whole extra level above us of, um, of, as you say, people paying out and essentially fueling the giving money to the people who are going to see other people and trying to carve out a space for them or that their their friends, um, to make sure that that they’re not no longer part of the fight, it, the incentives are all kind of screwed up. 

Marc: And we’re just trying to do a little show. I mean, that’s just a weird thing is when your, your brain opens up to this world is that, you know, cause I, rage at the machine and you know, the, the levels of grift possible and that knowing that it’s a multi-billion dollar a year business, isn’t it? I mean, patent trolling. So like, you know, when there’s that money, much money involved with anything, it’s getting a green light somewhere. Somebody’s getting paid off. So it becomes very difficult to stop that. 

Cindy: Yeah. And from a societal perspective, you know, all that money, the money that you know, that you guys get shaken down for that the non-practicing entities are shaking down from other people, or even the big companies buying up as many patents as they can, so they can protect themselves. This impacts people directly like you guys, but it impacts all of us because all of the resources that are going to these, this whole patent game are resources that aren’t being spent, you know, to develop cool new tools for us. So, you know, this is why we think of it as an innovation drain both directly and kind of indirectly.

I think for you guys, this story is pretty simple, you know, what would the world look like if this didn’t happen anymore. If people, if, we fix the patent systems and little guys who were trying to build something cool, and new didn’t have to face this gauntlet and didn’t have to pay the troll to go over the bridge.

Marc: All I know is that the world needs more pod-casters. I mean, they’re just, there’s just not enough. Pod-casters so hopefully when, when everything gets solved, we can just add another a hundred thousand or 200,000 a week of new podcasts to the pile.

Cindy: We are sorry. 

Danny: What we can do is move the patent trolls into podcasting. Right. Like they would probably do really. Yes. Right. That makes sense. Yeah. Yeah. 

Cindy: They can each have a podcast. 

Marc: I’m surprised there isn’t one that you know, that to me like us suggesting it be being in, living in these shameless, doubling down culture, we live in some miserable patent troll is like, that’s right. It’s a business. Let’s just do a podcast. 

Danny: And the, they be the only people who could legally do that. Right. So it would be the only podcast and the best podcast by definition. 

Marc: Right. Exactly. That’s all that’s left. Just two patent trolls going we won. No one could do anything, 

Cindy: But we are fixing the internet here. I love this, but we are fixing the internet here. And I think that the answer here is…It’s hard to talk about what the world would look like if you didn’t have trolls under the bridge. But I guess I just want us to pause for a moment and think about that. And what are the kinds of innovation? What are the things that we could see? I, I hear you mark. Maybe maybe more podcasts would happen, but the jury’s out about that/ 

Marc: When I use apps, like, uh, say, uh, sadly, an app that got very popular last year here in California, where these different air quality. Uh, uh, apps and apps that sort of help us kind of adapt or adjust or correct, uh, climate catastrophes and sort of get like the city, all these apps that, you know, bring people together, bring communities together, you know, raise awareness of things that are wrong, you know, that should be, you know, there should be an app, you know, alerting you if there’s a patent troll in your neighborhood or on your devices, you know, trying to figure out how to drain money from your account. And they have those kinds of apps. So, I mean, it seems like, you know, and any sort of creative things that, you know, painting and whatever drawing and things for kids, but ultimately if we got all this malignancy out of the way, maybe we could help, you know, kind of curing the problems that we are in.

Danny: And I think it’s worth noting that the people who actually invented podcasting did not patent it very specifically, right? It was. And I’m not going to get into who did it, because there’s always a little bit of an argument about that because no one has a patent on it, but very specifically, they gave it to the world. It was an open system that let anyone do it and it wasn’t Apple. It wasn’t, you know, Sony, it was a few people who said, you know what, we’re inventing this and we’ll make a bit of money out of it, maybe. But most importantly, everyone gets to use this. And I think that’s the future of tech for me. 

Cindy:  Some things are good to be owned and other things are good for society to be able to  mix burn and build, build upon. And I think that when it comes to ideas and technologies and things that we all want to rely on, we need to strike that balance, right. Because you know, too little and we don’t reward creators and we want to do that, but too much and we end up blocking creators too. And so we have to find that sweet spot in the middle. And the, I think it’s clearly the case that the patent system isn’t striking that balance correctly right now. 

Marc: Exactly. I agree. 

Brendan: Well, also, when you talk about balance, you have a, you have an imbalance between, you know, massive, you know, multinational, global, companies that are benefiting from products on the internet and just the whole entire infrastructure of how its run and private creators. And, you know, in the kind of like techno utopian version of the internet, it was supposed to be the private individuals and the creators who were helping to grow the global community around what products they were using, how people were able to advance information. And, you know, I think the big, like Samsung Apple podcast patent fight was happening right before this thing happened to us with Personal Audio. And I think that that type of thing, like when you talk about that imbalance of like, what is the internet, who’s it for? Is it for big corporations or is it for people to be kind of  an open source resource for everyone. 

And I, like, I felt it when it, all of a sudden was happening to us that like, oh yeah, no, this is, this is in, you know, structure, the same thing going on as went on with those massive global companies is now we’re on the receiving end of it from a, in a completely bad faith situation. And I don’t think we’re going to draw much sympathy from this. And thankfully we did. When you’re talking about how you fix something or how do you get a different trajectory for a problem that could persist, it really is about emboldening people with their choices, you can fight this, and here’s how. As opposed to get that letter, don’t know what it is. Be scared and send the money. Like that’s what we want to avoid going forward. And then you fill in the blanks leading up to that. How do you prevent people who are entrepreneurs, creators, and just regular people from having to deal with that. 

Cindy: That to me is the great moral of the story that you guys did, which is that, you know, you had, you, you pulled together some people and you were empowered to stand up. You know, my friend, John Perry, Barlow used to say, you know, nobody gives you your rights, you have to take them.

And you guys took your rights back and, um, we were delighted to get to help. But also I think it shows a model for other people who are facing threats from bullies whether they’re in the patent system or some other places that the, one of the keys to, to, to being able to fight back is to, first of all, don’t feel like you have to do it alone.

Danny: Yeah. If you get one of these letters, um, drop us an email. 

Cindy: [email protected] is where we is the first, first port of entry. And we’ll make sure that it gets routed around. We can’t do all of them, but we try to get help for everybody who asks us for help.

Cindy: Great. Well, thank you so much Marc and Brendan for coming on and telling us this story. I think it’s an important one and I, and I love stories with happy endings.

Danny: And  if you’ve enjoyed Marc on our podcast, you might think of subscribing to them. It’s just a little thing we do to try and move, you know, up  the status of your podcast Marc. 

Cindy: Your struggling little podcast. We hope to spend traffic your way.  

Marc: We’re doing, what we can, we’re doing, what we can, 

Cindy: Well, that was just terrific and so fun to get, to retell the story of, of that great victory with you guys. Thank you so much for coming on and telling that story to us again.

Brendan: It’s our pleasure, thank you for the work you do. 

Marc:  Yeah, thanks a lot, we really appreciate it. 

Cindy: Well that was just terrific, but what it really drove home, was how terrifying it was to be on the receiving end of that cease and desist and then just to realize that this was something real. The focus of this podcast is generally to talk about what it looks like if we get it right, but we really did have, a glimpse there of what it, what it looks like to be caught in a system that isn’t fixed.

Danny: Right. And what would’ve happened if they’d managed to get that podcast patent sustained? Like, how many podcasts would actually exist if you had to pay a fee? I mean, I imagine the way it works would be that you would have the big kind of companies doing it, you’d have CBS podcasts, you’d have the BBC podcasts. But, this whole ecosystem below it would’ve just- would’ve just dried up and vanished.

Cindy: Yeah and the kind of cool things like Marc’s like just talking to people in their garage asking questions, that just wouldn’t exist.  

Danny:  Yeah. I think this is maybe the first time we’ve had an actually EFF client on the show. I mean, most of the episodes that we do we have sort of fellow travelers and fellow experts who- who talk us through how to make things better. But, it’s fun to talk about the- the- the nitty gritty of how- how you actually move things forward. Especially the- this is kind of a chunk of what EFF does. Does this- does this count as impact litigation?

Cindy: Well, not strictly. Impact litigation is usually where you are aiming to make a judicial decision  that helps protect a whole bunch of people. It’s true that we protected everybody who podcasts when we won the podcasting patent. But we really didn’t change the law as much as get the law applied correctly in a particular instance. I may be splitting hairs here. We did litagion and it had an impact so i guess on that level  this is impact litigation. 

Danny:  Yeah. I think we tend to talk about policy changes or technology changes, but this is how you achieve specific changes, and it all starts with someone wanting  to push back.

Cindy: Yeah and I think that’s the central piece of this story that is so heartwarming, right? Is that, you know, the way that these guys were able to really rally this, you know, very nascent community of podcasters and I would say in some ways turned it into a community of podcasters. And pulled together this, and of course the fact that they all had microphones and could talk to their audiences played a big role as well. But I think it, it points the way to how we, how we make a better world. This shift from thinking about, oh no, here’s me, I got this, I got this threat, I’m very scared and I feel very alone to we’re gonna build a community of people who are gonna stand up and fight back. It’s critical in so many of the stories that we’ve heard. 

Danny: And, you know, if we’re gonna build a better internet, if we’re going to improve the future of the internet, we still have to preserve that thing, which is, for instance, when we were fundraising so that we could do this lawsuit, we put up a website and people donated, and no matter how hard they tried to get the names of those people, it was the internet that allowed us to get the money to do that and it was, uh, the internet that allowed, uh, all the podcasters to get together and spread the word. So, well, okay. Making a note to ourselves, those are the things that we would- we would like to keep.

Cindy: This piece, which isn’t really one of the things they teach you in law school about how to make things better. It ends up being key, to fixing,  issues on the internet, just as I think it would be fair to say probably is key to fixing things offline as well.

Cindy:  Special thanks today to Marc Maron and Brendan McDonald from the WTF Podcast. If you haven’t listened to it, if you are one of the few people that hasn’t heard it, please tune in, it’s a lot of fun. 

Danny: And while you’re at it, why not follow us too? Please visit EFF.org/podcast where you’ll find more episodes, learn about these issues, donate to become an EFF member, and lots more. Members are the only reason we can do this work, plus you can get cool stuff like an EFF hat or an EFF hoodie or even an EFF camera cover for your laptop. 

Nat Keefe and Reed Mathis of Beat Mower made the music for this podcast, with additional music and sounds used under creative commons license from CCMixter. You can find the credits for each of the musicians and links to the music in our episode notes. 

How to Fix the Internet is supported by the Alfred P Sloan Foundation’s program in the public understanding of science and technology. 

I’m Danny O’Brien.

Cindy: And I’m Cindy Cohn.