The EFF is starting up a new patent-busting project aimed at VoloMedia’s podcasting patent. Even if you’re a fan of software patents, it’s obvious bad patents screw up the whole intellectual property system. So I thought I’d check out if VoloMedia’s patent is legit, or if those cypherpunks at the EFF are onto something. Turns out someone beat VoloMedia to the punch by at least half a year.

VoloMedia applied for their patent in November 2003 but wikipedia’s history of podcasting mentions quite a few pieces of podcasting prior art. But it’s not good enough to say podcasting existed before the patent, therefore the patent is invalid. The real task is to figure out which prior art knocks out which of VoloMedia’s claims, and see if there’s anything left standing. So what are the actual claims? In their patent submission they’re laying claim to software that can:

  1. Subscribe to and automatically download from a feed of episodes
  2. Indicate new episodes are in the feed
  3. Sync the episodes to a portable device
  4. Sync to the device based on settings
  5. Sync to the device manually
  6. Share the episodes over a local network
  7. Limit automatic download based on feed priority
  8. Sync less than all of the feed’s episodes to a portable device
  9. Sync when the feed removes episodes

That describes every podcatcher available these days. But we’ve got to find out prior art published before the patent was submitted. So key is finding out what the state of podcasting was before November 19, 2003.

There are a whole bunch of standards docs (and conversations about them) from the people implementing this sort of tool. Searching around for the history of the RSS enclosure tag will find a bunch of people talking about downloading media through aggregators. But you don’t often get a big picture in these conversations, hardly anything focused on how the client actually goes about handling feeds.

But I did stumble accross Mark Pilgrim writing in February 2003 about some features in a brand new feed aggregator that sound a lot like the first claim in VoloMedia’s patent:

Ignoring for the moment all the things it doesn’t do yet (which all sound quite cool), it has one particularly disturbing feature: extracting full HTML content from linked RSS items. The feature is off by default, but once turned on (one checkbox during installation), every time it finds a new RSS item in your feed, it will automatically download the linked HTML page (as specified in the RSS item’s link element), along with all relevant stylesheets, Javascript files, and images.

But wait, there’s more! Deep in the comments, Kevin Burton mentions that one use case for sync is accessing that data on a PDA. Bam! Claim 3. In the same comment, he makes a big deal of the fact that this syncing only occurs based on user preferences, taking out claim 4. He later mentions the standard (and for patent purposes, obvious) way to indicate that a feed has been updated using ETags. Yes, that’s claim 2. And that second comment also mentions sharing NewsMonster downloads on the local network using the same protocol Apple uses in iTunes today, stardardized as ZeroConf. Claim 6, down.

Only syncing less than all the episodes so they fit on the device seems novel, if a bit obvious. The rest of the claims (manual sync, prioritized download, and syncing when a feed removes old content) were common in feed aggregators of the time. But considering NewsMonster’s coming soon features of the time, I’d bet that NewsMonster supported every single feature claimed by VoloMedia’s patent. I’d love to get my hands on an old beta 1 just to check.

For what it’s worth, podcasting is a terrificly successful and useful idea. It took plenty of great ideas to invent it and make it successful. And like it or not, those people who created it deserve the rights to those ideas. If Winer kept his RSS work to himself, it would still be as useful as it is today. But he gave it away and now everyone profits from his ideas.

The thing is, VoloMedia didn’t invent podcasting and they don’t deserve exclusive rights to it. So we’ve got to get rid of this patent, or we’re punishing all the podcasters, fans and real inventors that made podcasting awesome. If you’ve got any more information to help, get ahold of the EFF or let me know.