iSee iPod iNfringement

Point 1: Acronyms and Revisionism. My friend Mark countered my earlier arguments with the suggestion that the “pod” in Podcasting refers to “portable on demand.” I'd never heard it in that sense, except for in reference to the storage units, but that doesn't mean it isn't true. The Wikipedia had someone add this reference to the beginning of the podcasting article the other day, however it was removed, which makes me suspect that the editors saw it as a suggestion of questionable quality, just as I do. That does not seem to be what people typically mean when they use the term. Is this really anything other than a revisionist change in defense of fears that Apple would cry foul? The Guardian, the publication that first used the term “podcast” has this to say on the matter:

According to Creative Labs, it stands for “Personal On Demand broadCAST” (from www.zencast.com/about). However, that interpretation differs significantly from that intended by web developer Ben Hammersley. He first used the phrase in an article in the Guardian on February 12, 2004, as a synonym for the unwieldy “audioblogging”. He meant it as a contraction of “broadcasting” (because the content is sent over the net) and “iPod” (as a byword for MP3 players).

The article continues with some serious support for the assertion that podcast usually doesn't mean “portable on demand audiocast.”

Says Hammersely [the coiner of the term]: “Creative are talking rot. The pod in 'podcast' was obviously and blatantly meant to refer to the iPod. The accusation that I'd use such a clumsy acronym invites another one: […censored…].” We're sure Creative will spell out what that means.”

Now, there is no denying Creative and just about anyone else can say “but wait, now when we use the term we mean this, that, and the other thing.” What must be recognized however is that in this case such a claim is revisionist. If people could get away with such claims, I could start using Cokemachine to refer to my fancy new soda dispensing system and, when Coca-Cola tried to sue me, say, “I'm not referring to Coca-Cola, I'm referring to 'Cola Out of a Kool Electronic MACHINE.'” I think everyone knows that we'd have something other than “podcast” as the name of audio/video blogging if not for the fact that the iPod name has become synonymous with the MP3 player. If such a weak defense was accepted in cases of trademark infringement, virtually anyone could weasel out of trademark infringement.

If we rule out the “but, but, but, I don't mean iPod!” defense, we still have to deal with two other parts of my premise. First, that perhaps podcasting and iPods are so different the trademark is not an issue and, second, perhaps Apple wasn't first to use the term (unlike my earlier claim).

Point 2: Different Sectors. Apple argues that it is not infringing on the Apple Corp. trademark on the principle that no one is confusing Apple Computer with the Beatle's Apple Corp. record label. They are two companies in very different markets, and even now that Apple sells music, it doesn't do so in a way likely to confuse consumers. Does this apply to the iPod versus “podcasting”? This is admittedly somewhat subjective, but I would say no. “iPod” refers to a “digital audio player” (DAP), “podcasting” refers to an audio-blog that is typically could be played back on a DAP. Note that while the two are not the same thing, podcasting is something that is directly related to the iPod in such a way that it seems logical that “I have an iPod, so something broadcast from it would be a “podcast.” Just because my Cokemachine isn't a soda in and of itself does not clear it of infringement.

That leaves us with one point, and this is the one I think you'll want to challenge if you want to show that “podcasting” isn't infringement.

Point 3: Prior Art. If “podcasting” or “pod” existed as references to DAPs and activities involving DAPs prior to the iPod, this would clear “podcasting” from infringement. For example, I used the name SAFARI for my CMS before Apple used it for its web browser. If Apple decided to sue me for “infringing” on its common law trademark claims to “Safari,” I could easily (albeit expensively) counter that I used it first. I have plenty of archived proof showing I used the name as early as 2000 on the web and even earlier — 1999 — in private correspondence. Can anyone show that “pod” was associated with a DAP prior to the Fall 2001 launch of the iPod? Better yet, prior to the development of the iPod?

I have tried to be fair with the points listed above. I challenge anyone to show that any of them (or all of them) are unreasonable. If you cannot, I would suggest it is disingenuous to continue to insist Apple is legally wrong to do what it is doing. This doesn't mean you can't continue to argue that Apple is making a bad business decision in suing over this term, of course. I'd find myself in agreement with such a view, but that is a story for another post.

Twain on Cats

I heard this last night and thought it worth posting:

Of all God's creatures there is only one that cannot be made the slave of the lash. That one is the cat. If man could be crossed with the cat it would improve man, but it would deteriorate the cat.

I certainly was right about the first part. My cat woke me up several times last night as he tried to take more and more of the bed. But, he isn't spoiled or anything like that.

Apple and the Podcasting Trademark

I posted a comment on the Apple/Podcasting trademark controversy earlier today on Mark's blog. While I was going to write something more extensive here, I don't have time, so I'll just repost the text of my comment here:

Changing the name would make a lot of sense. Not to sound like the Apple apologist I am, but I expected this to happen for legal reasons. I don't think anyone can deny that the Pod in Podcasting comes from iPod. No one referred to MP3 players as *pod until Apple came around with the iPod. Like any sensible trademark holder, Apple has looked down on derivative trademarks, because those weaken the trademark holder's claim to their own name (failure to defend a trademark will destroy the trademark holder's claim to the name per U.S. law –– this isn't Apple's peculiarity, it is our government's).

Note that with Linux, for a company to use Linux in their product name (e.g. Red Hat Linux), one must obtain a derivative trademark agreement from, IIRC, Linux International, Linus Torvalds's designated authority for the matter.

In the end, they did help to create it [Mark suggests they are freeloading on the podcast phenomenon], because 1/2 of the name is from their product. It would be like calling a subscription to a non–Kleenex brand “tissue of the month club” 'Leenexcasting. I'd bet a lawsuit would transpire in no time. :–)

The big point, I'd say is this: anyone who didn't see this coming was far too naive. I thought it was kind of a stupid thing to name it to begin with for this very reason. Something that played off the name blog would have made a lot more sense than Podcast, and not only from a legal perspective but descriptive one too. Moreover, Apple doesn't want the “iPod halo effect” to go over other devices like the Zune, and since a lot of podcasters are outside of the whole iPod ecosystem, I can see why they would be concerned that very thing is happening.

Busy Day

So, I had a nice, busy Birthday. With Alpha meeting on Sunday nights it was a bit different than normal, but good none the less! The light rain kept me inside a bit more than I initially planned, but I got some reading done, which was something I had been hoping to do for awhile.

Tomorrow's back to work, though!

TQ: Music

This week's meme from Mark covers music. This is perfect since I just got back from the season opener of the St. Louis Symphony Orchestra: Bartok's The Wooden Prince.

1. What is your favorite way to listen to music?
Live. OK, beyond that, probably in the car. I'm not so much interested in the volume as the acoustics and immersion factors. Being in a small, enclosed space that has six or eight speakers sounds great. Not as great as it sounded tonight at Powell Symphony Hall, though.

2. What classical composer doesn't get enough credit/airplay in your opinion?
In the spirit of the evening, I'll say Bartok. I must confess I was not at all familiar with him until tonight, but his composition was truly enjoyable. It was a fast paced, varied score that kept a 103 piece orchestra very busy for almost an hour non-stop. While I probably preferred the Mozart concerto that proceeded it, I'm glad to have been introduced to this Hungarian/Romanian composer.

3. What band / artist would you like to see (cough) retire immediately?
Pretty much any rapper, especially St. Louis's very own Nelly. I just don't think a rapper singing explicit lyrics represents the spirit of St. Louis.

4. Looking into your crystal ball, what will replace the mp3 player?
The MP3 player, in as much as one means an electronic player that plays digital audio files from some solid state or hard disk storage, I think the MP3 player is pretty much here to stay. Primarily, I suppose I see the same thing happening to it as has happened to the PDA: it will become increasingly part of cell phones rather than a stand alone device. Perhaps the successors to the 80 GB iPod, and other high end devices, will stick around in independent form, but in 2010, I think most people will use their 100 GB cell phones that can connect to the iTunes Music Store wirelessly for no additional charge.

Note: The questions on this page written by Mark are governed by the Creative Commons BY-NC-SA 2.5 license. I believe my responses are allowed under fair use and therefore are not licensed under the Creative Commons license (I don't want people messing with adapting my personal opinions, thank you very much).

Wow, David Robertson is some conductor! That was spectacular tonight. The SLSO is an amazing orchestra, but Robertson's conducting was simply an amazing performance all by itself. It was a good way to ring out this year; tomorrow's my birthday.

Spinning Wheels

Lately, I feel like I'm spinning my wheels. I rarely seem to get much done, I simply add to the things in progress or work on the things in progress without seeing much of an end. Tonight was sort of like that; I spent awhile on the phone following up on computer technical support issues for clients, yet did not seem to get anything really done.

When I finally took off for the night, around 10:00, I decided to spend some time organizing and cleaning, so at least something would feel like it had been accomplished. And it does. While I still have plenty of stuff to do, at least I feel like I'm doing it in a slightly less disorderly environment!

Late Night Haiku XVII

XXXXVII. Anticipation,
A rushing stream runs by me,
Where do those waves go?

XXXXVIII. Thoughts drift like a kite,
Quiet, lest I stir the night,
Lower from this great height.

XXXXVIX. A fish once read Twain's
Huck Fin. He never finished.
He had finite time.

What a Deal!

American is having a warehouse sale at the moment. I went there today to see if there was anything terribly useful I might need that was on sale (last time they had this sale, I ended up with two Mac Mini's, as some may recall).

Well, I did not find much, but I did leave carrying $0.02 worth of merchandise. No, you didn't read wrong; I said two cents. For whatever reason, American had little kits from Nikon that consisted of a strap to attach to a camera (to go around one's neck), two lithium batteries and a roll of 35mm film. I don't recall American ever carrying a 35mm SLR, but that's what these little kits were intended to go with. At any rate, the strap seemed useful enough, in case my Sony one would ever wear out, and perhaps the batteries could come in handy too, so the Nikon kits had a buyer for one penny a piece.

I probably should have bought a protection plan to cover the purchase…

Amazing, Good News

I'm more than a bit surprised, but it seems that through a series of amazing events, the 11 day old infant that had been abducted over the weekend, in the metro area, was given to authorities and returned to her mother. I have to say I doubted a happy ending to this — what wonderful news! Praise God!

Boo Hoo

Well, apparently, my inner child needs Paxil or something. How about yours?

Your Inner Child Is Sad

You're a very sensitive soul. You haven't grown that thick skin that most adults have. Easily hurt, you tend to retreat to your comfort zone. You don't let many people in - unless you've trusted them for a long time.

Hat tip goes to Michael.