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Act now, or this puppy is in grave danger. Podcasting pug photograph (CC) zoomar.

Patenting the use of all episodic media on the Web might sound absurd, but the US Patent and Trademark Office has granted just such a patent, to a company called VoloMedia. It’s a significant issue, one that could threaten the freedom of all media distribution online. Wherever you are in the world, you can help.

Intellectual property law was created in order to protect genuine inventions and innovation from exploitation. But predatory patents, based on bogus claims and attempting to stake out broad rights, threaten to do just the opposite.

Here’s a new idea: fight back.

Lawyers are the heroes this time. The Electronic Frontier Foundation’s patent-busting project aims to take down unfair patents that threaten common-sense uses of technology. A number of these have applied to music and audio. The EFF has already won a big victory against what had been the worst offender – media giant Clear Channel actually successfully patented recording live shows. (No, really — recording a live gig, then burning them on the spot. The EFF was able to bust that patent.) The advocacy group also scored significant victories against patents on sending and receiving online streams and encoding media. (If someone thought they could patent your ears and charge you royalties for hearing, they probably would.)

Lawyers alone haven’t won these battles. The EFF’s clever twist is to crowd-source its case, by getting people like you to help the group document “prior art” – in plain English, to prove that something existed before the patent. (Without basic chronology, I could claim to have discovered electricity.)

In short, you can help save the freedom of online content.


VoloMedia’s Bogus Patent – And Why It’s Dangerous

VoloMedia has been granted a patent for “providing episodic media.” The patent is broad enough to endanger any independent podcast or episodic media producer. Over the summer, Volomedia’s own Murgesh Navar sidestepped concerns about patent abuse to brag on the company blog about just how broad that claim was – that even non-RSS-based episodic media belong to them:

With specific reference to our newly issued 7,568,213 patent, it was filed in November 2003, almost a year before the start of podcasting.  This helps underscore the point, that for nearly six years, VoloMedia has been focused on helping publishers monetize portable media…. and has continued these efforts with the addition of a wide array of smartphone-based applications.  The patent that issued yesterday helps to tie together and reinforce the value of the various technologies and services that VoloMedia has developed to help accomplish this objective.  VoloMedia’s intent is to continue to work collaboratively with key participants in the industry, leveraging its unique range of products to further grow and accelerate the market.  Today, podcasting is 100% RSS-based.  However, the patent is not RSS-dependent.  Rather, it covers all episodic media downloads.  It just so happens that, today, the majority of episodic media downloads are RSS-based podcasts, which is why we titled our announcement the way we did.

Aside from the “before the start of podcasting” lie – and I believe “lie” is the only accurate word – it’s the implied threat that should send a chill down the spine of anyone using the Internet. Make no mistake about it: VoloMedia wants anyone doing podcasting, via any mechanism, to work with them. From that same blog entry:

The impact of a strong growing IP portfolio is such that we would expect new entrants into the podcasting arena to have a collaborative relationship with VoloMedia, just as do many of the current players.

From the patent itself, as approved, the technology VoloMedia claims to own is described as:

A method for providing episodic media, the method comprising: providing a user with access to a channel dedicated to episodic media, wherein the episodic media provided over the channel is pre-defined into one or more episodes by a remote publisher of the episodic media; receiving a subscription request to the channel dedicated to the episodic media from the user; automatically downloading updated episodic media associated with the channel dedicated to the episodic media to a computing device associated with the user in accordance with the subscription request upon availability of the updated episodic media, the automatic download occurring without further user interaction; and providing the user with: an indication of a maximum available channel depth, the channel depth indicating a size of episodic media yet to be downloaded from the channel and size of episodic media already downloaded from the channel, the channel depth being specified in playtime or storage resources, and the ability to modify the channel depth by deleting selected episodic media content, thereby overriding the previously configured channel depth.

Plain English translation: if what you’re doing with media has episodes, you owe VoloMedia.

If this patent were allowed to stand, and if VoloMedia were able to successfully enforce it, it would have a chilling effect on all Internet distribution. Regardless of the likelihood of their legal success, that underlies the fundamental problem with patent law – it has come completely unglued from reality. That alone ought to motivate people to fully document these issues and try to effect change.

Wondering why you haven’t heard of VoloMedia if they supposedly invented all episodic content online? Right now, they advertise “solutions” for advertising and analytics, an iTunes plug-in, and branded mobile apps for platforms like the iPhone. That’s it. RSS and previous formats date back to the 1990s, with the intention of covering episodic media across formats, just as the VoloMedia patent claims. These were published standards years before VoloMedia’s claim. That’s why demonstrating the details of this history become so important: they could strike down VoloMedia’s bogus patent.

Help Write Episodic Content’s History

VoloMedia’s patent twists the law, and common sense. But the same laws also provide for disproving a patent. If you can prove that an invention existed prior to the date for which a patent is claimed, you can undo the damage.

For that reason, the EFF is asking for your help. Knowing the readers of this site, I imagine there are people out there who know those details, or know people who do.

You’re all old enough to remember the Age Before Fall of 2003, right?

Here’s the call to action:

In order to bust this patent, we are looking for additional "prior art" — or evidence that the podcasting methods described in the patent were already in use before November 19, 2003. In particular, we’re looking for written descriptions of methods that allow a user to download pre-programmed episodic media like audio files or video files from a remote publisher, with the download occurring after the user subscribes to the episodes, and with the user continuing to automatically receive new episodes. You can read the entire prior art request here, and if you have something that could help, please send it to podcasting_priorart@eff.org or fill out the form on our Volomedia page.

For more information:

EFF Tackles Bogus Podcasting Patent – And We Need Your Help

Patent Busting Project: VoloMedia

Prior art serves a second purpose. Part of the reason predatory firms can abuse patent law is because technology’s history is so poorly written. I would like to see these kinds of bogus patents struck down, but I’d also like the real history behind today’s technologies to be told. So even beyond this legal battle, I hope that we begin to make the story of technologies like what is now called “podcasting” accurate, complete, and fair. Future generations of technologists will thank us.

Certainly, the VoloMedia patent, if enforced, would do tremendous harm to media today. The entire strength of the Web is that it doesn’t have to have homogenized distribution channels, that anyone can publish without centralized outlets or “collaborative relationships” with any big partner.

If you’ve never cared about intellectual property policy before, this might change your mind. No one should be allowed to un-invent the Internet.

  • http://grantmuller.com Grant Muller

    This doesn't even make sense. Does this imply that you can patent episodic content in print (the comic book/serial)? Total Nonsense, but consider, how could this patent possibly be enforced?

  • http://friendfeed.com/dmlandrum Darren Landrum

    Geeks in Space:

    http://en.wikipedia.org/wiki/Geeks_in_Space

    Unfortunately, I have no better record of this existing, so we'll have to count on the word of thousands of people who listened to it.

  • http://friendfeed.com/dmlandrum Darren Landrum
  • http://www.createdigitalmusic.com Peter Kirn

    If you do find good prior art, definitely send any information you can find to EFF via their call to action, not just me. (I'm no lawyer.)

    Obviously, there's a certain amount here that I expect really couldn't be litigated. But that only serves to illustrate that it is essentially a frivolous patent. If patents are ever to mean anything, we have to find a way to close those floodgates to the bogus stuff.

  • http://www.inoutfest.org active

    at least there is a cute picture to go with this. it's time to draw my black mask and get on the streets…er…internets…..

  • Steven Nguyen

    This is complete rubbish. I am appalled. This reminds me of a somewhat similar case a few years ago where an Australian man had obtained a patent for the wheel, although, it was to show the flaw of the broken system.

    But honestly, what on earth? How would they even think they could get away with this? And even more mind-boggling is how they've been granted the patent. Even then, if they could get away with this, violation against the patent would never be able to be efficiently enforced.

    Stupid, stupid, stupid.

  • http://fourstones.net Victor

    Jan 2001 "payloads for rss"
    http://www.thetwowayweb.com/payloadsForRss

  • Genjutsushi

    If they succeed, they dont need to be able to enforce it, but just need to have enough capital to sue a couple of larger corporations for using Podcasting technology – Apple?

  • Kai

    @Peter – You might try getting this over to the people at boingboing. They're pretty hardcore EFF types and very resourceful about finding information of the sort needed for this.

  • what would the capta

    surely R kellys soap opera is a very well known piece of episodic media

    and one of the finest works of art of this century

  • http://www.exodub.com/ Kyran

    Didn't anyone just google "rss rfc", the first link shows you all standard descriptions of the rss format, the first one dating from may 2001 (you know, back when netscape still existed)

    This is a technical description on how you can share media in an episodic format.

    I mean, if I can dig this information up in 2 seconds, then why can't the patent office. Besides, this is not some green story, rfc's are the official documents that describe web technology.

  • griotspeak
  • http://www.isle-of-avalon.co.uk gwenhwyfaer

    Just out of interest, if the US can legislate to prevent UK libel victories from being enforced through US courts*, perhaps the rest of the world can similarly pass laws which protect their citizens from the patent situation in the States?

    ____

    * For the record, I heartily approve of this; the UK's libel laws have been stretched beyond sanity, largely through the judgements of a single judge, and we desperately need reforms, which unfortunately our politicians have no interest in pursuing.

  • Blob

    I've just filled ou their form – I've sent them this link:

    http://rantmedia.ca/afternow/

    It's an online cyberpunk audio drama by RantRadio's host Sean Kennedy. It's been going since early 2003. The oldest news item is dated from 18th March 2003, and the first episode is a bit older than that. I hope they get in touch with these guys to get more info.

    This is just an example, I'm sure there are LOADS of independent online radio stations who've been podcasting or putting up episodic shows for download since before 2003. Keep sending EFF those links!

  • http://tr.im/muloka Louis

    @griotspeak

    Ha! I remember those! Netscape Channels!

  • Blob

    @ Genjutsushi

    good point there – wouldn't Volomedia be sued into oblivion by Apple because of their iTunes store? When did Apple open its online music / podcast store?

    (Or maybe a deal of some sort would be struck between the media companies)

  • Blob

    * i apologize, there were lots of missing words in my last post, here's the revision:

    @ Genjutsushi

    good point there – but wouldn’t Volomedia actually be sued into oblivion by Apple because their iTunes store was already working at the time?

    When did Apple open its online music / podcast store?

    (Or maybe a deal of some sort would be struck between the media companies)

  • http://www.indamixx.com Ronald Stewart

    ROOKIE MISTAKE! – The lawyer who wrote this must be as dumb as the PTO reviewer. You can bust this one up by using 'storage resources' too vague. There is wording you can use here for what they meant to say (I am not telling them) but keep in mind they had to submit actual drawings/diagrams and I am positive if I could see those docs then use 'storage resources' against them in their own claim. Keep in mind they cannot go back to the well and insert newer wording or claims… so they are stuck. If I can find one mistake in a simple brief read then real heavy hitting lawyers will clean their clock.

    I don't like cursing on the net but

    GOOD LUCK ASSHOLES!

  • http://dublab.wordpress.com dlab

    Uhh… Strongbad Emails???? Duh!

  • http://ifnotwhynot.me DJSDive

    What is almost even harder to fight is when someone just claims to have intellectual property rights, but doesnt specify on what exactly the claim is being made. This is the case with the MIK software. They explain the idea of the "camelot notation" and "camelot wheel" on their website which is essentially exactly the same as the circle of fifths, just that instead if proper key's they introduced a number based system that makes it more obvious to non avid musicians how to move around the circle. It also helps in sorting inside applications that are not natively able to sort by the circle of fifths. Anyways, useful, but certainly mapping a key to an integer plus a letter is not patent worthy. Still their site in the end just makes the brought claim that essentially everything discussed on the site has to be licensed by them:
    http://www.harmonic-mixing.com/CommercialLicensin

    Their excuse for such broad and fuzzy claims is that a lot of their stuff is still trademark/patent pending. Yet they told me in a private email exchange that they do not claim any intellectual property rights on just the mapping. Way to make that clear.

    Here are some more detailed information on what I see as a pretty obvious abuse of the patent system .. or rather using it for the purpose of fear mongering aka FUD:
    http://ifnotwhynot.me/mixed-in-key-not-playing-ni

  • gbsr

    if they get away with this the internet will die.

  • nsn

    Lawyers are always the heroes, just not always for the good side. Good lawyers (fight *this* patent)– Bad lawyers (did this patent, granted this patent). Both heroes for their respective sides. Both sides love (by love I mean pay) their lawyers, hate the other side's (mainly because they have to then pay their's more too).

  • http://www.createdigitalmusic.com Peter Kirn

    @nsn: That wasn't meant as an anti-lawyer swipe; of course, the law is part of the system.

    But minor correction: I believe a lot of the EFF work has been done pro bono.