The Electronic Frontier Foundation reports
The Good, the Bad, and the Ugly of Adam Carolla's Settlement with the Podcasting Troll
Adam Carolla has settled(PDF) with the podcasting patent troll Personal Audio. Although the settlement is confidential, we can guess the terms. This is because Personal Audio sent out a press release(PDF) last month saying it was willing to walk away from its suit with Carolla. So we can assume that Carolla did not pay Personal Audio a penny. We can also assume that, in exchange, Carolla has given up the opportunity to challenge the patent and the chance to get his attorney's fees.
EFF's own challenge to Personal Audio's patent is on a separate track and will continue. Our case is before the Patent Trial and Appeal Board at the Patent Office. We are on schedule for a hearing in December with a ruling likely by April 2015. Carolla's settlement does not impact our case.
Carolla and Personal Audio have agreed to a "quiet period" where they won't make any public statements about the settlement before September 30, 2014. Not coincidentally, Personal Audio is still scheduled to go to trial against a number of television companies (NBC, CBS, and Fox) in September. Since Carolla is muzzled, we'll do our best to explain the significance of the settlement. In short, it's a mixed result.
(Score: 3, Interesting) by TK on Thursday August 21 2014, @02:05PM
The quiet period is only for the next 40 days. If this is before the trolls have another court case, there may be some value in this if the settlement heavily favors Mr. Carolla.
I wonder what happens to the kickstarter money? Could half a million dollars be the cost of a settlement?
The fleas have smaller fleas, upon their backs to bite them, and those fleas have lesser fleas, and so ad infinitum
(Score: 2) by weeds on Thursday August 21 2014, @02:20PM
Indeed. I'm not so worried about the money as the fact that it looks like Mr. Corolla paid his own fees. This doesn't have the impact one would want on the trolls.
On the other hand...
1. Start up patent troll company
2. Sue self for infringement
3. Start kickstarter campaign (F*** patent trolls!)
4. Profit!
Get money out of politics! [mayday.us]
(Score: 2, Interesting) by Zanothis on Thursday August 21 2014, @03:27PM
As far as the timing of this, the article mentions this ill omen:
IANAL, but I wonder: could the "quiet period" prevent Mr. Carolla from presenting any evidence of the patent's invalidity to other defendants?
(Score: 3, Informative) by Blackmoore on Thursday August 21 2014, @04:31PM
It would prevent Adam; and his lawyers; but it's hardly relevant since all of their case was built on the EFF's case which is proceeding.
It would be very kind if Adam would send the remaining money (after the legal expenses) over to the EFF to pursue this.
(Score: 1) by IndigoFreak on Thursday August 21 2014, @11:47PM
From what he said on his show, there is no remaining money. He's short still.
(Score: 2) by Blackmoore on Friday August 22 2014, @04:08PM
well, that's sad to hear; but not particularly surprising; the lawyers consumed it of course.
(Score: 0) by Anonymous Coward on Thursday August 21 2014, @05:39PM
Seems that if I were one of those defendants, I would move for a 1 month recess.
(Score: 1) by Paradise Pete on Thursday August 21 2014, @02:43PM
Where is there support for the headline's claim of "must pay for own lawyers"? I'm not saying it's wrong, but is it anything more than an assumption?
(Score: 2) by janrinok on Thursday August 21 2014, @02:49PM
From the summary, and the story:
The EFF are therefore making an assumption and clearly stated that fact - why did you have to ask if it was an 'assumption'? The headline simply reflects the story.
(Score: 3, Informative) by MrGuy on Thursday August 21 2014, @03:20PM
It's a consequence of the case being settled out of court.
If this case went to a decision (either a jury verdict or resolved as a matter of law by a judge), as I understand it (IANAL) as a matter of course the "prevailing party" is entitled to costs OTHER THAN lawyers' fees (filing fees, deposition fees, exhibit costs). It's also POSSIBLE in extraordinary cases (and EFF speculates this COULD have been such a case) that the court ALSO awards attorney's fees to the prevailing party. In other words, the court COULD have awarded attorney fees as a court order to Mr. Carolla.
The troll in question offered a few weeks ago to drop the case entirely, and Mr. Carolla's team declined. In other words, they declined "OK, we'll just go away." It was speculated at the time that one reason for persisting in the case was to force a ruling, in the hope the court WOULD award attorney's fees.
By settling, he's given that up. Mr. Carolla will have to pay his attorneys himself - the troll is NOT obligated to pay the bills for him.
That said, it's entirely possible the settlement contains financial consideration for Mr. Carolla (that seems extremely likely). And it's possible the amount of that settlement is sufficient to cover the attorney's fees. But the point is, now that there won't be a verdict, Mr. Carolla has to pay his own lawyers - the court won't order the troll to do so.
(Score: 3, Insightful) by MrGuy on Thursday August 21 2014, @03:32PM
By the way, some (myself included) would argue this is a weakness of the American legal system, where it's assumed as a matter of course that each party will pay their own legal fees. It's what a troll counts on as part of their "you'll settle just to make me go away!" calculation - even if you win the American system, you lose (i.e. in a case like this, where you have no counterclaim against the troll for damages, you're out your lawyers fees no matter if you win or not).
This is part of the reason you see so many patent trolls in the US, as opposed to other countries (I believe the UK is an example here) where in most cases the losing party pays BOTH parties' legal costs. A troll would go bankrupt under such a system - they'd need to be LIKELY TO PREVAIL before they can profitably bring a suit. Otherwise, the defendant just hires competent representation, wins, and is out nothing other than a nuisance of their time.
(Score: 5, Insightful) by monster on Thursday August 21 2014, @03:44PM
Losing party paying both parties' legal costs is no panacea, either: I could sue you and offer to settle for a sum or go to court and face my lawyers from CostATon & Associates. Unless you were really sure you would win, you would still have a big incentive to settle and not face CostATon's outrageous fees if you lose.
(Score: 5, Insightful) by MrGuy on Thursday August 21 2014, @03:55PM
Sure - it's just a consideration that changes the calculus.
Right now, all you need in the US is as a case "just barely strong enough to not be immediately dismissed." This is an incredibly low bar. As long as I don't get laughed out of court, I can force you to spend money no matter how weak my case is, even if we both know I'l likely lose on the merits all things considered, so it's worth you giving me something to go away.
If attorney's fees went to the prevailing party, you at least raise the bar to "strong enough that a competent attorney has a reasonable chance of prevailing on the merits." I'm much more likely to fight a weak case if I have a reasonable expectation I can do so for free.
(Score: 0) by Anonymous Coward on Thursday August 21 2014, @05:46PM
I agree, the rule should be that if the prosecution loses (since the defendant can't op to drop the case) the defendant should be offered recompense up to and including their attorneys fees, but also capped at some amount (to prevent, "you don't want to sue me, I will defend myself with 'CostALot', just think if you lose". This cap may be set based on the length of time the case drags on, or just a strait up cap, I'm unsure what would be fairer.
(Score: 2) by monster on Friday August 22 2014, @06:49AM
I agree with you that current system has important flaws, I'm just pointing out that the other method has problems on its own. Another one: If I am really sure that I will win (take a clear construction code violation, for example, or some other thing usually not prosecuted but technically illegal anyway) I could bankrupt you even if the penalty for your violation was mild.
(Score: 3, Interesting) by e_armadillo on Thursday August 21 2014, @07:04PM
The settlement was dated 08/15/2014, but I count 13 donations accepted on the Carolla campaign in the last day. That count is as of this posting.
https://fundanything.com/en/campaigns/patenttroll/donations [fundanything.com]
But there are no updates indicating that this has settled. It seems to me that posting a note that, "it is over, but we can't talk just yet", would the honorable thing to do.
It kind of leaves me with mixed emotions about having donated a few weeks back.
"How are we gonna get out of here?" ... "We'll dig our way out!" ... "No, no, dig UP stupid!"
(Score: 1) by IndigoFreak on Thursday August 21 2014, @11:53PM
That is interesting that they haven't announced on fundanything.com And I don't see anything on the front page of his site. But he did announce on his podcast. I don't expect everyone that donates to listen to every episode of his podcast for the latest update. But he hasn't been completely silent.
He also stated that he was still short money. So maybe that is why?
(Score: 2) by e_armadillo on Friday August 22 2014, @08:01PM
Maybe, but I think it would be more ethical to come out and say so on the funding site.
"How are we gonna get out of here?" ... "We'll dig our way out!" ... "No, no, dig UP stupid!"