UPDATE: March 31, 2014
Magistrate Judge Nathanael Cousins issued his written ruling granting EFF's motion to quash. It is available here.
UPDATE: March 5, 2014
The court held a hearing today on the subpoena. Good news: Magistrate Judge Nathanael Cousins agreed with EFF and struck down Personal Audio's demands. The judge will issue a written order shortly; we will publish as soon as we have it.
Personal Audio can try to appeal the decision, so this fight may continue. But for now: victory!
For decades, EFF has been fighting to make the world safe for innovation. And we’ve been fighting even longer to protect First Amendment rights to anonymity and privacy. Today, those fights came together, as we went to court to stop a patent troll from obtaining information about a specific group of EFF donors, as well as a vast swath of otherwise privileged information.
Last year we filed a petition at the Patent and Trademark Office challenging the so-called ‘podcasting’ patent owned by Personal Audio. More than one thousand people donated to our Save Podcasting campaign to support our efforts. Our fight against Personal Audio became one of the major patent troll stories of 2013, with coverage in outlets ranging from Ars Technica to NPR’s Planet Money.
But we aren’t the only challenge Personal Audio faces. The company is suing a number of podcasters and three major television networks in a Texas federal court. EFF is not involved in that lawsuit – but that hasn’t stopped Personal Audio from trying to use it as an excuse to target us. Specifically, Personal Audio has issued a legal demand, called a subpoena, that attempts to force us to provide information about a variety of topics including donations to our Save Podcasting campaign (the subpoena is available here), on the pretext that the information is somehow relevant to the Texas case.
We believe that Personal Audio’s subpoena to EFF is improper for a number of reasons that are laid out in detail in our motion. Above all, we are outraged that Personal Audio is seeking to invade the privacy and associational rights of hundreds of our donors. EFF takes the privacy of its members and supporters extremely seriously—and so does the Constitution. As we explain in our motion, the First Amendment protects our donors’ right to privacy, and Personal Audio’s supposed need for the information does not trump those rights.
Personal Audio’s tactic is also improper for several other reasons. For example, it is appears to be primarily intended to avoid the well-defined limits of the PTO discovery process. The petition we filed follows a new, streamlined and therefore relatively inexpensive process. Rather than respond to that petition following the rules of that process, Personal Audio is trying to use entirely separate litigation as an excuse to raise the stakes on EFF – something Congress never intended. If Personal Audio succeeds, we fear it will send a message that this new process can be made invasive, cumbersome and expensive after all, which will in turn discourage others from using it to challenge low quality patents. That would be a shame for all of us.
The Juelsgaard Intellectual Property and Innovation Clinic at Stanford Law School has kindly offered to provide free, individual legal counseling to any donors to the Save Podcasting campaign who may have questions about the subpoena and their own options. The clinic can be reached at: 650 724 1900 or email@example.com. We strongly recommend that donors with questions contact the Stanford Clinic for independent legal advice.
While some of our donors will gladly tweet about giving to EFF, others may prefer to keep such information private. We strongly support the right to make that choice, and we will do all we can to oppose Personal Audio’s demand. We will be posting any major developments regarding the subpoena on our blog.