Google Goes On The Offensive Against Troll Armed With Old Mp3 Player Patent

from the Creative-Labs-forcing-its-way-back-into-the-market dept

It wasn't enough that Creative Labs/Creative Technology spent March 24th suing almost every big name in the cell phone business for patent infringement. These lawsuits, all filed in the East Texas patent troll playground, asserted the same thing: that any smartphone containing a music app (which is every smartphone produced) violates the patent it was granted in 2005 to use in conjunction with its mp3 players. "Venue is proper" because smartphones are sold in Texas, even if the plaintiffs are located in California and Singapore, respectively.

That wasn't all Creative Technology did. It also filed a complaint with the US International Trade Commission seeking to block the import of smartphones from manufacturers like Sony, LG, BlackBerry, Samsung, etc. under the theory that every imported phone contains patent-infringing software. The ITC has opened an investigation of Creative's allegations, which will at least hold off any potential import blocks until it reaches a decision. The ITC's summary of Creative's patent claims clearly shows how broad the patent's potential coverage is -- and (inadvertently) why it should be invalidated.

The products at issue in the investigation are portable electronic devices, such as smart phones, with the capability of playing stored media files selected by a user from a hierarchical display.

Creative Labs started its patent war early, suing Apple back in 2006 for "violating" its patent with its iPods. Apple ultimately settled with Creative for $100 million -- not only encouraging Creative's trolling ways but also moving Apple towards more aggressive acquisition (and defense) of patents, even for something truly obvious like "rounded corners."

Google has decided it's not going to wait around for the ITC or east Texas courts to come to the wrong conclusions. It's gone on the offensive, seeking declaratory judgment that it does not violate Creative's broad patent. Every company sued by Creative on March 24th sells Android phones that contain Google's "Play Music" app. On behalf of its customers (and its own Motorola Mobility, which was also sued), Google wants Creative's BS patent's power neutered.

No version of the Google Play Music app directly or indirectly infringes any claim of the ’433 patent. No third party infringes any claim of the ’433 patent by using the Google Play Music app in other devices. Google has not caused, directed, requested, or facilitated any such infringement, and has not had any specific intent to do so. The Google Play Music app is not designed for use in any combination that would infringe any claim of the ’433 patent. Rather, the Google Play Music app has substantial uses that do not infringe any claim of the ’433 patent.

[...]

An actual and justiciable controversy therefore exists between Google and Creative regarding whether the Google Play Music app infringes or has infringed the ’433 patent. A judicial declaration is necessary to determine the respective rights of the parties regarding the ’433 patent. Google seeks a judgment declaring that the Google Play Music app does not directly or indirectly infringe any claim of the ’433 patent.

Creative is asking for a substantial payout for something as obvious as selecting and adding songs to a playlist. The claim specified in its lawsuits is this one:

The method of selecting a track as recited in claim 1 wherein the accessing at least one track comprises selecting an item in the third display screen and adding at least one track associated with the selected item to a playlist.

If Google's receives a judgment in its favor, it will at least protect the cell phone manufacturers from having to deal with claims related to its "Music Play" app. For all of those that load their own music apps on their phones (which, again, is all of them), they're still on their own when it comes to fending off Creative's rent-seeking.

The market has changed and left Creative behind. Back when it sued Apple, it at least had a competing mp3 player on the market. Now, it has nothing even remotely related to smartphones, but still thinks it's entitled to a cut of those profits because it made music players once upon a time. And it's so desperate to leech off viable companies that it's willing to abuse more than a friendly district court to achieve its ends.

Filed Under: declaratory judgment, mp3 players, patents, playlists
Companies: creative labs, google

Failed Company, Now Patent Troll, Sues Apple Over Transferrable Playlists For A Third Time

from the personal-troll dept

Remember the company Personal Audio? This is the complete flop of a company that claimed it tried to develop a personal audio player that never went anywhere, and now is nothing but a pure patent troll. It opened an empty office in East Texas, and actually succeeded in winning $8 million from Apple this summer for its patent (6,199,076) on an "Audio program player including a dynamic program selection controller." It had also sued for a second patent (7,509,178) on an "Audio program distribution and playback system," but had failed to convince the judge.

After winning the lawsuit (and both parties are appealing parts of the ruling), Personal Audio sued a second time, arguing that other Apple products also infringed the first ('076) patent. That lawsuit was put on hold until the appeals on the first lawsuit were dealt with. But with the release of iOS5, Personal Audio has wasted no time in suing Apple once again, bringing the '178 patent back into the ball game. As the Patent Examiner blog explains:

The difference in the new case? It’s as simple as a USB cable. The patent in question is for an “audio program distribution and playback system” that downloads playlists. At the time, the Apple products named in the first suit had to be connected to a computer to sync playlists using iTunes, and Judge Ron Clark of the Eastern District of Texas decided Apple did not infringe the patent despite the jury having concluded otherwise.

“The USB cable did not meet [the judge's] definition of ‘download,’” said Personal Audio lawyer Ronald J. Schutz of Robins, Kaplan, Miller & Ciresi. “Apple argued that the USB cord turned the iPod into a dumb hard drive.”

But with the release of Apple’s new iOS 5 software, iPhones, iPods and iPads can sync playlists from iTunes over a WiFi connection instead of using a USB cable.

Because, you know, without Personal Audio around, I'm sure Apple would have never figured out a way to sync playlists over WiFi.

Filed Under: ipod, patent troll, playlists
Companies: apple, personal audio

Apple Loses Patent Lawsuit... Over Playlists

from the yeah,-that's-innovation dept

East Texas is famous for its patent lawsuits, and even though the Federal Circuit had suggested in the past that district courts be more willing to transfer patent cases out of East Texas, companies keep coming up with tricks to stay in East Texas. Take, for example, the company Personal Audio. Despite not actually being based in East Texas, the company set up "offices" in East Texas two months before suing Apple and others over two patents (6,199,076 and 7,509,178) concerning music players, where playlists can be pushed to the players.

Those new offices had no employees and just so happened to be "based" in the same offices as their patent attorneys (shocking coincidence, I'm sure). But, because of that, the case was allowed to stay in East Texas.

And... of course, there's a reason why they wanted it in East Texas. Because Personal Audio has been awarded $8 million from Apple for those patents. It's not a huge ruling, of course (which might also suggest a reason for Apple to just pay up, rather than appeal), but it's yet another example of the problems of the patent system today.

Filed Under: east texas, patents, playlists
Companies: apple, personal audio

MySpace Replaces All iMeem Playlists With Ads -- Doesn't Ask Permission

from the is-that-legal? dept

With MySpace buying up some of iMeem's assets (and leaving many musicians with little hope of getting paid what they're owed), one of the big complaints was that all of iMeem's public playlists simply disappeared overnight. This was particularly obnoxious, because plenty of people had relied on iMeem for legal music streaming of playlists they had put together. It appears that last week MySpace decided to add insult to injury and quietly started replacing all iMeem playlists with giant ads. I just checked the one iMeem playlist I had created on a different blog, and, sure enough, in its place was a giant flash ad for Beyonce ringtones.

This should be a warning for anyone using any third party widget maker for placing content on your site. You're basically giving others control over what they display on your site, but it's particularly obnoxious to replace something like a music playlist with an advertisement. Many sites that included iMeem playlists were non-commercial, and sneaking ads into them could potentially impact other issues. As we were recently discussing, Vimeo says that you can't post its videos to sites with ads (even though it seems to ignore most people who do). But what if you had Vimeo videos on a site that also had an iMeem playlist? Suddenly that site has "gone commercial" with ads, even though the owner of the site might not even realize it.

As many people are claiming that streaming services like Spotify and the now-Apple-owned Lala are "the future of music," including their ability to post streamable playlists, it's worth remembering what happened in this instance. It's certainly making me think twice about ever using a third party app for streaming content, knowing that they might just replace it with an ad down the road.

Filed Under: ads, embedded music, music streaming, playlists, third party apps
Companies: imeem, myspace

Record Labels Continue To Go After Music Startups

from the onwards-and-downwards dept

On Friday, we wrote about how the likelihood of eventual lawsuits created a chilling effect that shut down Mixwit, a useful online mixtape service provider. It seemed quite unlikely that Mixwit was violating copyrights, as it didn't host any music nor make the music that people played through available for download. However, that won't stop the record labels who seem to believe that any service that lets you play music must first receive the big record labels' blessing (and, in case you were wondering, that blessing costs a lot of money, and often equity).

Earlier this year they sued one such startup, called Project Playlist. Similar to Mixwit, Project Playlist doesn't host any music. It just sends a search query to a variety of search engines, finds results of publicly available music via those search engines and then aggregates the results into a playlist. It then allows you to create widgets with that playlist. All of this should be perfectly legal. Project Playlist simply has no way of knowing whether the music found via various search engines is legal or not. It's not doing any of the hosting. It's not allowing downloading for infringement purposes. It's difficult to see what possible complaint the record labels have with it, other than the simple fact that it's a good innovation that people like, and no one's paying the big record labels for it.

Of course, lawsuits take some time, and apparently (unlike some other startups) Project Playlist hasn't simply folded when the lawsuits showed up. The company, which has raised a significant amount of money and has brought on experienced internet execs seems to be fighting back. So what did the record labels do? Well, they went after third parties, such as MySpace and Facebook who host the widget from Project Playlist. This is even more untenable than the lawsuit against Project Playlist. MySpace and Facebook are even further away from any liability, because as open application platforms, they don't even know much of what their applications do, let alone that one may be going to search engines, finding publicly available songs, putting them into a playlist and letting people stream them.

But, why should anything like that stop the record labels? So, late last week, MySpace gave in and locked out Project Playlist widgets while Facebook seems willing to push back on behalf of users. MySpace's move really isn't that surprising, since MySpace launched its MySpace Music offering to terrible reviews and (from the buzz we've heard from insiders) much less use than projected. MySpace Music competes directly with Project Playlist, so the company must be thrilled about an excuse to shut down access to Project Playlist, even though the end result might just drive users away, and make app developers that much more cautious about betting on MySpace as a platform.

Apparently, record label folks are claiming that Facebook's refusal to block Project Playlist is "irresponsible," which is laughable coming from the recording industry -- perhaps the most irresponsible and short-sighted industry around. Facebook knows that it has the law on its side, and at best the recording industry can launch a wasteful, money-sucking lawsuit against it, which will only drive music fans further away from the recording industry. If the record labels want to talk "irresponsible" they should look at themselves in the mirror first.

Update: Interesting timing here. Apparently Sony BMG has worked out a deal with Project Playlist. While News.com designates this as "good news," I'm not so sure. Yes, it's probably good news from the standpoint of avoiding a lawsuit, but it's bad news from the standpoint that Project Playlist was pressured into signing a deal that legally it almost certainly does not need. It's now set a precedent that rather than stand up for its rights, if you threaten enough, the company will fork over money (and potentially equity). Once again, this just reinforces the record labels' incorrect position that no one should be allowed to innovate in the music space without paying a toll to the big record labels.

Filed Under: copyright, playlists, takedown, widget
Companies: facebook, myspace, project playlist, riaa

Playlist Patented... Everyone Sued... But Did Apple Pay Up?

from the sounds-like-it dept

A bunch of folks have been submitting the latest story on a patent hoarding firm, Premier International Associates, who appears to have absolutely no other business than getting its hands on questionable, overly broad, obvious patents and then suing everyone possible. In this case, the patent is for the basic concept of a playlist, which can be found just about anywhere. So, it should come as little to no surprise that the list of companies sued is quite long, including: Microsoft, Verizon, AT&T, Sprint, Dell, Lenovo, Toshiba, Viacom, Real, Napster, Samsung, LG, Motorola, Nokia, Sandisk, HP, Acer, Gateway and Yahoo (phew!). That's quite a list, though it's not surprising to see that there are a ton of companies offering software that has a concept so basic and so obvious as a playlist.

However, there is one very interesting point here. Apple is missing from the list. As the folks over at Ars Technica figured out, Premier actually had sued Apple about this same patent back in 2005, but at the same time it was filing all these new patent lawsuits it filed to dismiss the Apple suit, suggesting that Apple most likely paid off the company (perhaps giving it the money needed to suddenly sue every other company in the universe. Apple certainly has a history of doing this. When the company was sued on a rather similar obvious patent on a hierarchical menu-based user interfaces held by Creative, it eventually (after spending some time fighting it) decided to simply pay $100 million to be left alone. Of course, all that did was allow Creative to head out and sue plenty of others. Sound familiar? By settling on these questionable patent claims, all Apple is doing is encouraging more lawsuits of this nature for itself, as well as others.

Filed Under: patent trolls, patents, playlists
Companies: apple, at&t, dell, lenovo, microsoft, napster, real, sprint, toshiba, verizon, viacom