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 [here]. We've been working closely with folks in DC on the new SHIELD Act. We've been filing briefs in the court trying to make it better. Earlier this year, we were talking with the PTO, about reining in these types of patents. We want to live in a world where this type of activity can't happen.
Have lawmakers been responsive?
Right now they're incredibly responsive. I just got back from DC last night, and I talked to lawmakers, in both the House and the Senate, and people from both parties are really interested in fixing the patent troll problem in a way that I have not seen in as long as I have been working on these issues.
The main recourse of the SHIELD Act seems to be financial penalties. Is that the best course of action?
I think there are many ways to address the problem. I think the SHIELD Act is a great one. Given the political climate we currently are in, we're going to have to come up with some kind of quota of patchwork of reforms. What's so appealing to me about this is that what it does is that it makes this old business model significantly less attractive. It makes life more difficult for the trolls. It makes life more expensive for the trolls, and it also gives parties the tools to fight back.
The SHIELD Act isn't the answer for everyone. There are still tons of targets of patent trolls who can't afford to even take advantage of the provisions of the SHIELD Act, but what it does is it changes the ecosystem. We have to start somewhere, and the SHIELD Act is a way to get at the patent trolls quickly, cleanly and effectively. There are lots of other reforms that we're interested in. That's just one, but I think it will go a long way to making the world a better place frankly.
Are you working with the patent office, as well?
Yes, and we're working with the PTO too. Frankly, seeing real reform out of the PTO is significantly less likely than seeing bill reform out of either Congress or the courts. It's just the reality of this world. A lot of that is legally what the PTO can and cannot do actually, and financially what the PTO can and cannot do with its limited resources.
So SHIELD is the easiest way to expedite the process.
Yeah, I think that's right, and I'm glad that you bring that up because there is room for a lot of movement in the courts. We're watching these cases very closely. There's one in particular called CLS Bank that's working its way up the federal circuit now. And that's a case that could potentially end up before the Supreme Court, and if it does, that would be a potential vehicle to see some real change. We're also working closely with the PTO, trying to recommend new and changed policies that would improve patent quality, and that would limit over-broad, vague, frankly crappy patents that we see out there, and we'll continue to work with them to do that. We're encouraged to see recently that the patent office is not only open to those discussions but encouraging those discussions. So hopefully that will lead to some reform.
As you said earlier, the issue is that many of these podcasters don't have the financial means to defend themselves. So what can they do?
Well one thing they can do is try to organize, and that's something we're trying to help some folks do. And if they get organized, they can pull resources and try to fight back. It's also incredibly valuable [for them to] tell their story. We've really seen some interest in policy makers in fixing this problem, but sometimes it's hard to explain to them what the problem actually is, and people who can explain how this actually affects their lives are incredibly effective at helping us tell members of Congress what the problem is. If people are looking for lawyers, [they can] send an email to firstname.lastname@example.org, and we'll see if we can help them find someone.