Personal Audio LLC is a patent-holding company that became famous (or infamous, depending on one's point of view) by claiming that it owns things like playlists and podcasts (or "episodic content," in the words of one Personal Audio patent). Its wild claims led the Electronic Frontier Foundation to raise more than $76,000 from donors to fight the patent.
In October, EFF filed a petition for what's called "inter partes review" in the patent office, seeking to overturn the patent.
Now, EFF has been subpoenaed by Personal Audio, asking for a ton of information about EFF's work against the holding company's claims—including a full list of the more than 1,000 donors who gave in this fundraising campaign. Personal Audio is arguing it needs more information in connection with its lawsuit against podcasters like Adam Carolla and Discovery Channel's HowStuffWorks. In that subpoena, it's asking for all of EFF's communication related to its fight against this patent: including the identities of the donors who contributed to the fundraising campaign.
That's not proper, argued EFF lawyer Daniel Nazer in a blog post last night.
"We are outraged that Personal Audio is seeking to invade the privacy and associational rights of hundreds of our donors," wrote Nazer. "As we explain in our motion, the First Amendment protects our donors’ right to privacy, and Personal Audio’s supposed need for the information does not trump those rights."
According to EFF and its outside lawyers in this case, Personal Audio is really seeking information to use in the legal proceedings at the Patent Office—information it can't get through the normal discovery process there. If the company succeeds, it could create a precedent that makes reexams burdensome. "If Personal Audio succeeds, we fear it will send a message that this new process can be made invasive, cumbersome, and expensive after all, which will in turn discourage others from using it to challenge low quality patents," wrote Nazer.
The Personal Audio demand is the first time EFF has received a legal demand for its donors' names, according to Nazer.
A Personal Audio lawyer wasn't immediately available to comment on the subpoena, but agreed to speak to Ars tomorrow; we'll follow up with their comments.
The Personal Audio patents harken back to a cassettes-by-mail business created by its founder, Jim Logan. That business went defunct in 1998, but Logan claims he thought up key ideas behind podcasting in 1996—and modern podcasters need to pay him for his invention. EFF has brought out older, similar technology to try to challenge the patent, including old episodes of "Geek of the Week," an early Internet radio show produced by Carl Malamud.
Personal Audio is in the process of drafting its response to EFF's petition, which is due next month. The patent office will then make a decision about whether to institute a review process. The current timeline has that decision scheduled to come in early May, said Nazer.
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