Podcasters, Hold Your Fire!

The podcasting community, tech community, and ever reliable Apple-hating community is up in arms over a recent legal challenge the Cupertino firm sent to Podcast Ready. To hear the blogosphere tell it, Apple is suddenly trying to claim ownership of the word ‘podcast,’ and is further biting the hands of the creative masses that have helped make its products so popular.

The story spread a lot faster than the facts, largely stemming from a Wired blog post that was light on details and somehow concluded, “Apple is claiming that it owns the word ‘podcast.'” In response, my fellow podcasters blasted Apple, tried to redefine ‘podcast’ or come up with another word (“netcast? “audcast”?), and planned meetings and protests and petitions and boycotts. Some were disappointed that all podcasters weren’t upset or taking this development seriously. Podcasters like me.

Frankly, I knew Apple’s lawyers had a history of shooting first, thinking later. With so much ground to cover, lots of legal stuff happens on autopilot. Remember when they made a little girl cry? More “cease and desist” letters flow down Infinite Loop than hybrid cars. Secondly, no one seemed to have read the actual letter. One well-linked analysis of Apple’s trademark efforts netted lots of information about the issue in general, but again didn’t seem to get at the heart of what Apple supposedly wanted out of Podcast Ready.

Finally, Podcast Ready CEO Russell Holliman today published the Apple letter (PDF) in its entirety.

So, has Apple’s legal team gone off the deep end? Are they trying to take ownership of the word ‘podcast’? Well, on the former point, the jury will always be out. I have no doubt their lawyers will continue to be a bit aggressive, but frankly that’s par for the course in defending trademarks. But as to the allegagion that they’re trying to take ownership of the word ‘podcast’? They actually make clear that it’s not their intent:

“While Apple of course has no general objection to proper use of the descriptive term ‘podcast’ as part of a trademark for goods and services offered in the podcast field, it cannot allow marks that go beyond this legitimate use and infringe on Apple’s rights in POD and IPOD.” (Emphasis added.)

So, before someone starts smashing iPods in disgust, it might help to actually read the letter everyone’s so upset about. A few points that may have been missed in all the excitement:

1. Apple is expressly not trying to take over ‘podcast,’ as noted above. The letter actually says that Apple is not challenging a separate Podcast Ready filing because the services description there clearly indicates podcasting-related services.
2. The letter is prompted by an attempt by Podcast Ready/Infostructure Solutions to register trademarks for ‘Podcast Ready’ and ‘myPodder.’ It’s not as if they were Googling around and went after them at random. They noticed a filing that seemed close to their own trademark filings and made contact.
3. There’s a hardware element to the Podcast Ready/Infostructure Solutions filing (covering “portable listening devices”) that really seemed to set off Apple’s alarm bells. Even if Podcast Ready wasn’t going to be manufacturing or branding any media devices, presumably Podcast Ready was leaving open the possibility that it would form partnerships with other manufacturers. I can’t think of any companies offhand that use the term ‘podcast’ to describe that particular feature of their media players, and maybe there’s a reason why. A Podcast Ready website is fine, a Podcast Ready player is not? They may or may not have a case here, but again, it wasn’t just about a name.
4. Apple is also taking issue with the company’s myPodder software, and the possibility that Podcast Ready/Infostructure Solutions company was about to rename itself myPodder. Here it is just about a name. Is ‘myPodder’ too similar to ‘iPod’? They also suggest that the company may have been considering selling actual iPods with myPodder software pre-installed. I’m pretty sure this wasn’t going to happen, but the suggestion certainly made Apple sit up and take notice.

In short, starting a podcast with ‘podcast’ in its name, starting a podcast portal with ‘podcast’ in its name, or even selling a hat rack with ‘podcast’ in its name isn’t going to get you sued. However, selling an digital media player dubbed Podcast Ready, selling myPodder software as the myPodder company, or putting myPodder on iPods you sell? That’ll definitely get you a letter.

The only point that has been raised that deserves greater scrutiny, in my opinion, is Apple’s assertion that it has a claim on “POD” as well as “IPOD.” Sure, “IPOD” is a nonsense word that Apple created and owned, but “POD”? That’s a stretch. I don’t think I’ve ever heard “pod” used as an alternative name for an iPod. And Shawn Thorpe on the podcasters mailing list notes that the Line 6 company has a whole line of products branded with the name “POD.” Not just products, but music-oriented electronics. And it predates the iPod. Apple’s interest in “POD” has already sparked some concern, so if bloggers want a cause to rally around, the “POD” thing makes more sense.

As far as the claim on ‘podcast’? Didn’t happen, and probably won’t. Think aspirin, cellophane, escalator, thermos, and zipper. Its use “in the wild” is already generic, and Apple never owned it in the first place.

Apple may very well be overreaching in this Podcast Ready case, but its actions are not as far out of line as the current howl-fest would make it seem. Love ’em or hate ’em, Apple and iTunes brought podcasting to the masses faster than any noble, grass-roots, open source effort could have. They’ve done a lot of things to earn our ire, and this latest mess may very well be the next entry in the “screwups” column… but before we slam Apple for “biting the hand that feeds,” we better be careful about doing the same thing ourselves.