Tom Webster, writing and speaking

VoloMedia Patents Podcasting - Now What?

Added on by Tom Webster.

VoloMedia (formerly PodBridge) has been awarded a patent for podcasting. This patent basically covers any online delivery of episodic media (including, but not restricted to, RSS delivery) and, for the time being, gives VoloMedia an extremely valuable piece of IP to hang their hat on. My friend David Oxenford (author of the extremely valuable Broadcast Law Blog) reminds me that there was once a patent awarded covering all on-demand streaming technologies, and that this patent resulted in years of protracted, costly litigation. Of course, litigation in this case, as in any case, requires a plaintiff. But who?

VoloMedia's own press release notes that "there will come a day when all the content on Hulu is available as an episodic download," a clear hat-tip to their strategy and likely one of their first partners and/or challengers. Lots of folks on Twitter are buzzing about the legitimacy of this patent, given Dave Winer and Adam Curry's credible claim to prior art. Here's the thing with patents--unless prior art is painfully obvious, chances are good that the U.S. Patent Office will award a patent as long as no one else has patented whatever it is. The real test then comes AFTER the patent has been awarded--it either expires, or is successfully challenged in court. Either way, a lot of money is spent trying to capture the flag.

The question in this case is: who would spend that money? With the early VC luster gone from podcasting, and the traditional media companies who now create vast amounts of episodic media not necessarily spoiling for this fight, it isn't immediately obvious who, if anyone, will challenge this patent. From VoloMedia's perspective, the patent is a clear win--the value of the company just got a clear boost, which makes VCs happy, and from their perspective a little standardization of podcast/episodic media delivery is a good thing. I've certainly noted in the past that the consumer experience for finding, downloading and consuming podcasts leaves a lot to be desired, and it may be that VoloMedia will usher in a new era of "one-click" podcast consumption that is device and client-independent. After all, with so many podcasts being delivered via the iTunes music store, portable consumption of podcasts is locked in to Apple-branded iPod players (and the Palm Pre, at least on odd-numbered weeks) which can't be good for the consumer in the long run.

All of which brings us to the elephant in the room--Apple. With Apple controlling so much of the podcast aggregation and delivery on the iTMS (which remains a black box for most podcast content creators) one would think that they'd have a vested interest in the outcome of this particular case. However, the "one-click" example I mentioned earlier may also hold a clue to how Apple will in fact react to this news. In 2000, when Amazon was awarded a patent for it's one-click ordering process, Apple chose to join 'em, not fight 'em, and licensed the technology from Amazon. This hurt some feelings, and undoubtedly ruffled a few feathers--but you have to admit it made buying music on the iTMS a better experience for customers.

This means, of course, that those who might be harboring hope that Apple will wade into this issue should be careful what they wish for. If Apple chooses to license, rather than fight, then VoloMedia's patent becomes very powerful indeed. Not only that, but VoloMedia instantly becomes a more attractive target for Apple (or someone...) to buy outright, leading Apple to actually "control" the process to which they unwittingly lent their "pod" name.

So much in this situation depends on motive--will VoloMedia attempt to go after independent podcasters? Why would they? But what about quasi-rivals in the ad-insertion/delivery game like AndoMedia, RawVoice or Wizzard? Remains to be seen. In any case, VoloMedia has planted a flag that signals they are serious about episodic media and they have a strategy to monetize it--even if that strategy is based on IP royalties.