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SHIELD Act could save podcasting

Reps. DeFazio and Chaffetz announce the SHIELD Act

Reps. DeFazio and Chaffetz announce the SHIELD Act

A patent troll has been threatening the future of podcasting. A company called Personal Audio owns a patent that it claims covers podcasting, and has begun contacting prominent podcasters demanding payment for licensing their patent.

The patent in question was only issued in 2012, some 7 years after the widely acknowledged invention of podcasting, and after the start date of the podcasts the company is attempting to collect from. Which, of course, begs the question of how someone can violate a patent that didn’t exist at the time.

Additionally, the patent is very broad, claiming ownership over an “apparatus for disseminating a series of episodes represented by media files via the Internet as said episodes become available.” However, the technology behind “apparatus” is not described in any detail, only represented in a block diagram, with no mention of the standards, like RSS, which are actually used in distributing podcasts.

However, relief may be coming. Last week Reps. Peter DeFazio (D-OR) and Jason Chaffetz (R-UT) introduced the Saving High-tech Innovators from Egregious Legal Disputes (SHIELD) Act to tackle this problem. The House Subcommittee on Courts, Intellectual Property and the Internet will hold a hearing on the bill this coming Thursday.

The SHIELD Act would place a higher burden on companies that buy and own patents only to find other companies to sue, by making them liable for both sides’ legal fees if they sue and lose. Patent trolls make much of their money not by winning patent lawsuits, but by forcing defendants to settle in order to avoid even more expensive and protracted civil trials. One statistic I’ve heard is that patent trolls actually win less than a quarter of the suits that actually go to trial.

Under the SHIELD act a defendant can ask the judge to rule on whether or not the patent owner is “non-practicing.” That is, the judge determines if the plaintiff is actually using the patent or is the actual inventor of the patent, like a university might be. If the judge finds that the plaintiff is “non-practicing” then it can be required to post bond ahead of trial in order to ensure that it can actually pay the defendant’s legal costs when it loses.

It is hoped this would increase the risk of pursuing a frivolous lawsuit and give defendants more incentive to defend themselves in court rather than settle. Podcasters are also hoping that passage would make it too risky for Personal Audio to pursue threatened lawsuits.

The bill has received wide support in the technology and electronics industry, as well as amongst online civil liberties groups. The Electronic Frontier Foundation has set up a page to contact representatives in support of the SHIELD Act.

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