Personal Audio LLC has recently become one of the more well-known "patent trolls" due to its broad claims to owning basic podcasting technology. The company has filed lawsuits in East Texas, claiming that its patents on "episodic content" technology, which stem from founder Jim Logan's failed "Magazines on Tape" business, entitle it to royalties from podcasters large and small.
That got the company special attention from the Electronic Frontier Foundation, which crowdfunded a challenge to the Personal Audio patents. EFF asked donors to help raise $30,000 to file an "inter partes review" at the US Patent and Trademark Office. That goal was quickly surpassed, and EFF ultimately received about $80,000 from more than 1,300 donors upset about the "podcasting patent."
In January, Personal Audio sent a subpoena to EFF, demanding the full list of donor names. It believes some of those names are connected to companies it has sued in Texas. Those include NBC, CBS, and Fox, as well as the HowStuffWorks podcast (Discovery Channel), Ace Broadcasting (which produces Adam Carolla's podcast), and a smaller Internet radio company called TogiNet.
EFF pushed back, saying the subpoena was a violation of its donors' First Amendment rights. On Wednesday afternoon, the issue came to a head in the San Francisco courtroom of US Magistrate Judge Nathaniel Cousins. After nearly 30 minutes of oral argument, Cousins said he would grant EFF's motion to quash.
Who's on that list?
During argument, Personal Audio explained why it wanted to see the full list of donor names. It believes the crowdsourced effort could be largely funded by donors who are connected with the companies it is suing.
"I don't care if Joe Schmoe donated to the 'Save Podcasting' campaign—unless that Joe Schmoe is affiliated with the defendants in the Texas case," said Personal Audio lawyer Papool Chaudhari. "Maybe we'll see NBC's outside counsel on that list. Maybe we'll see Adam Carolla, or a broadcasting organization intimately tied to NBC or Fox. I think we need to know these things."
When EFF's lawyer, Vera Ranieri, got her chance to argue, she emphasized the wide-ranging breadth of the Personal Audio subpoena.
"They've asked for the name of every single donor, not just the Texas defendants," Ranieri said. "They've asked for our communications with everybody—information that's not relevant to that case. If they want to know whether or not the Texas defendants are involved, that's information the Texas defendants can tell them."
Chaudhari explained that the broadcasters were essentially stalling, and he was up against a deadline. "We have served interrogatories. NBC, CBS, and Fox—they're all objecting," Chaudhari told the judge. "If we can get information now, it would be extremely beneficial to our case... My concern is that fact discovery [in Texas] ends May 12."
At the end of the hearing, Cousins said he would be issuing a ruling in EFF's favor. However, he largely won't address the First Amendment and privacy issues brought up by EFF's motion. To Cousins, a simple issue of timing was paramount.
The law governing inter partes reviews prevents the parties bringing such reviews from renewing their arguments in a district court. That's the issue that Personal Audio has said, in court papers and in a brief interview with Ars, it is concerned about: the company doesn't want its opponents to get "two bites at the apple" when it comes to fighting their patents.
But Cousins noted that those "estoppel" rules only kick in when there's a "final written decision" in the inter partes review, something that is several months away.
"I tend to view this as, we should wait and see what occurs in the PTAB," said Cousins, referring to the Patent Trial and Appeal Board. "It's premature to be asking for this information."
Following the hearing, Personal Audio CEO Brad Liddle, who came out to San Francisco for the hearing, declined to comment.
Electronic Frontier Foundation lawyer Daniel Nazer said: "The privacy of EFF's donors is extremely important to us, so we're very pleased with the judge's ruling."
Since Cousins is a magistrate judge, Personal Audio has the right to object to his ruling and ask the district judge to overrule him. That would be a real longshot in this case, however; Personal Audio isn't likely to get the full list it's looking for.
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