ZapMedia files patent infringement lawsuit against Apple over iPod and iTunes

77 Comments

ZapMedia Services, Inc. today announced that it has filed a patent infringement lawsuit against Apple, Inc. for unspecified damages related to the company’s iTunes internet site and related media players such as the iPod. The lawsuit comes after multiple attempts by ZapMedia Services to resolve its concerns with Apple over infringement of ZapMedia Services’ patents.

According to ZapMedia Services, “Beginning in the late 1990s, ZapMedia, Inc., the predecessor of ZapMedia Services, created a unique platform and vision for the enjoyment of digital media assets. In connection with this vision, ZapMedia developed a system by which it could provide hardware, software and content to consumers to allow them to gain control over their digital media assets. To protect this intellectual property, ZapMedia has obtained U.S. Patent Numbers 7,020,704 and 7,343,414, each of which is entitled ‘System and method for distributing media assets to user devices via a portal synchronized by said user devices.'”

According to ZapMedia Services, “In the course of its efforts, ZapMedia met with many major technology and media companies around the globe, including Apple, describing its vision in great detail. Without asking ZapMedia for permission, Apple subsequently unveiled its own system. Apple announced its iPod MP3 player with an integrated iTunes software application in October of 2001 and its iTunes store in April 2003.”

The lawsuit was filed in the Marshall Division of the District Court for the Eastern District of Texas.

MacDailyNews Note: Let’s stop here and take a little detour. In February 2006, Sam Williams reported for MIT’s Technology Review:

In one federal court in East Texas, plaintiffs have such an easy time winning patent-infringement lawsuits against big-tech companies that defendants often choose to settle rather than fight.

East Texas lawyer Michael C. Smith calls it the “rattlesnake speech.” It generally occurs in the early stages of a patent trial in the Marshall, TX, courtroom of Judge T. John Ward, when some attorney has failed to read up on the rules specific to litigation in the U.S. District Court for the Eastern District of Texas.

Like a scene out of the comedy movie “My Cousin Vinny,” the speech starts with a polite invitation to approach the bench — and ends with a stern warning to pick up the pace or else.

“He gives you a real talking to,” says Smith, a partner with the Roth Law Firm in Marshall and chairman of the Eastern District’s rule committee, a group of local attorneys that works with Judge Ward to set the guidelines for basic pre-trial and trial procedure. “He won’t bite you that first time, but if you don’t get the message, you’ll wish you did.”

Judge Ward’s toughness is a big reason that Marshall, a city of fewer than 20,000 residents, located 150 miles east of Dallas, has become a destination for patent attorneys around the world.

In the rough calculus of intellectual property litigation, tough judges equate with speedy cases — and that’s exactly what you want if you’re a plaintiff with limited cash, but potentially big-time settlement payments or damages from a company you claim is infringing on your patent.

As an example, attorney Smith cites the ongoing case of Laser Dynamics Inc. v. BenQ. It pits a Japanese plaintiff with a patent relating to optical disk drive recognition against a billion-dollar Taiwanese device maker. When defense counsel for BenQ failed to cough up a set of relevant e-mails in the pre-trial discovery phase, Ward, a jurist who has heard more than 160 patent cases in the seven years since his appointment to the federal bench by President Clinton, decided to make an example of the company: BenQ would have to pay a $500,000 fine and forfeit a third of its courtroom time in the upcoming case.

Okay, so back to today’s news: “The Complaint alleges that ZapMedia Services’ property is being exploited in a manner which is unlawful, and by law ZapMedia Services is therefore entitled to a reasonable royalty on Apple’s revenues related to the infringement,” said Steven G. Hill, of Hill, Kertscher & Wharton, LLP, lead litigation counsel to ZapMedia Services, in the press release.

Dating to June 2006 and continuing through the fall of 2007, ZapMedia made Apple aware of the patents and their availability for license. “When someone takes our vision and our intellectual property without a license after several attempts, we have no option but to protect it through every means available to us,” said Robert J. Frohwein, general counsel of ZapMedia Services, in the press release.

Source: Business Wire

77 Comments

  5. Interesting … to pay a $500,000 fine and forfeit a third of its courtroom time in the upcoming case … and how do you decide what 1/3rd of someone’s courtroom time is? Do you just video-tape the proceedings then excise a third of it?
    Up front, I’d like to state I don’t approve of “judge” or “court-room” shopping and feel that the plaintiff should file in the court nearest the city they call “home” in their documentation. A valid option might be to file in the defendant’s home city.

    Reply

  6. Except ‘My Cousin Vinny’ is a fairly amusing film and the American legal system is a sad reality.

    According to ZapMedia Services, “beginning in the late 1990s, ZapMedia, Inc., the predecessor of ZapMedia Services, created a unique platform and vision for the enjoyment of digital media assets. In connection with this vision, ZapMedia developed a system by which it could provide hardware, software and content to consumers to allow them to gain control over their digital media assets.

    It’s odd, this system was apparently created but never became a tangible product: does this mean if I turn up at the US PTO with pages ripped out of an Arthur C. Clarke or an Asimov novel, I can claim that I “created” any number of things like the positronic brain or the satellite.

    Reply

  7. @ ericdano

    If they’d done that there wouldn’t be so much money at stake. See, it costs money to pay a lawyer to come up with this stuff. Simple cost-benefit analysis. Wait until the iPod is enormous, then say…

    “Oh yeah, hey, didn’t we give Apple this idea in the first place? Wow, we should really get some of their money, since we were never able to launch an actual product of our own. Cindy, get me legal on the phone…”

    Voila! Free money!

    Reply

  8. Spitzer’s $5,000 Hooker…

    Firstly, I know that Spitzer sleeping with a consenting adult female would be anathema to radical Republicans: far better to be like Mark Foley and go after boys.

    Secondly, and more to your point than your name, shall we compare that to Bush’s DoJ dropping the ball on Microsoft’s abuse of its monopoly.

    Reply

  12. I think the point on the $5,000 whore is the fact that Spitzer made himself (and promoted himself) by busting just this type of organized crime. (a high priced prostitution ring on Statan Island, I believe). The only thing more beloved than a white knight is a white knight with poo on his face! He is a hypocrite, which on moral grounds is worse than being simply weak.

    Reply

  14. MCCFR must be into prostitutes – pay for sex deals.

    A. It’s illegal, so Spitzer deserves to get nailed.
    B. You have no morales. No you don’t. Really.
    C. Back to A. If you don’t like the laws, then vote to change them, or move to a country to your liking – like Denmark perhaps. Moving gals across state lines from NY to DC to hook is illegal. Deal with it.

    These and many other morality-based laws (which virtually all laws are based) is to aid in keeping society from degrading all too far and fast. Evidently, you and the strip clubs you visit – or own – don’t see it that way.

    Reply

  18. C1
    Whether or not prostitution is legal is a state issue.
    Nevada being the noteworthy state of exception– even goes down to county level— as to approbation or not. Most states have it deemed illegal by statute.

    Reply

  25. C1
    As to that square dancing thing….
    Just have to “round” up all the “callers” and slap-em in the hoosegow. And those frilly skirts have got to go too… too provocative…. might stimulate prostitution an’ all

    Reply

  28. “If you can’t come up with anything clever, parrot out a tired old quote like a chimp.”

    And complete with one of those misspellings you seem to enjoy pointing out (you, your, ah, whatever), right Mr. and Mrs. Morales?

    Believe you me, as an actual female who goes for $5,000 an hour, I need considerably less to wipe my tiny, taut, little ass than does, for example, a very confused man who parades around as a woman.

    Reply

  30. And in other related news, the descendants of Benjamin Franklin claim to have a patent on the discovery of ‘electricity’ – any and all users of ‘electricity’ are now guilty of patent infringement, and owe the Franklins $18 billion dollars.

    I’ve patented ‘the air that we breath’, and my dog has a patent on ‘poop on the sidewalk’ – take a breath, or step in some shit and we’ll see you in Texas!

    Reply

  31. I’ve got $50 on Chrissy, best 2 out of 3 falls.

    Or wait.. is gambling illegal?

    Well, I guess, sort of illegal.. unless you’re on a Reservation, a boat, near a moat, in Nevada or Atlantic City, or participating in state-sponsored lotteries, all of which are perfectly legal.

    So gambling is illegal about half the time…. why exactly?

    Maybe Dr. Suess knows… I will not gamble on a boat, I will not gamble near a moat.

    Reply

  36. Make Me III…

    Using your ‘logic’ (if it can be called such), I could argue that you obviously support mature men trying to seduce youths whose parents would doubtless be horrified at the abuse of trust, given that they thought their kids were going to Washington to learn about the mechanics of public service.

    BTW, Spitzer’s ‘crime’ – other than abusing the faith placed in him by his wife – is hypocrisy, which appears to be the favourite of every politician: the same was true of Foley.

    Reply

  42. It’d be interesting to see the dates of their patent filings — late 90s is pretty vague, and for several years before the iPod was available, Apple supported other mp3 players through iTunes. Maybe Apple did come up w/the idea first — we need more info, but I’m too lazy to do the research!

    Reply

  44. Ok Buttah, gotta go do a gig. You’re killing me today. The tiny ass post cost me a dry cleaned shirt full of coffee dribble.

    Be nice to the little people and try to be gentle when you rip their wings off.

    On second thought, have a blast torturing them.

    Reply

  49. To Make Me Ill…
    Your observation is very sad but could be discarded. Your statement of defense is so sad that I can only feel pity for you and those who think like you. The pity is only for the fact that you are a product and victim of religion. Prostitution is not void by law or religion… maybe you can find some logic for it and I will buy it.
    The law will not change even if he votes for it cause we have more victims like you to vote for the system.
    Until the day that we lighten up about religion and its remedies, we shall pay with our lack of freedom.

    Reply

  50. Hey Jim, be careful with the “buttah” comments….the usual use of the nickname “Buttah” or “Butter” is used in the context:

    “She’s butter. Nice ass “butter” face……!”

    ps. for those of you running a tad low in the gene pool, substitute “butter” with “but her” in the sentence above….

    C1, what is a good sized butt for a woman? LOL!

    Reply

  52. Chrissyone:

    if one person pays another for sex, it is illegal.

    if 2 more people have sex, are filmed by a crew of several more people, and hand it over to be distributed, everyone gets paid and it is a business…..

    what? you don’t see the logic?

    Reply

  53. Not sure how this thread turned into a prostitution debate, but as long as we’re here….

    I remember, as I read the book Shogun by James Clavell, being struck by the civilized manner in which the “need” for prostitution often arises. The need, of course, stems often (not always, so don’t send a bunch of exceptions) from marriages in which one or both participants become a bored or otherwise disinterested in sex with their partner. They still love their partner and want to continue the marriage (or other partnership) so splitting up is not the answer. In the book about feudal Japan, the wife selected a concubine for her husband. It was her duty, as household manager, and her choice. The wife still maintained the respect and honor of being the primary woman in the relationship. Of course the reciprocal action of a male concubine for a wife was not tolerated (that’s another topic). In short their was an acceptance of the male drive for sex and mechanism in place to maintain a happy home and loving and respectful relationships within a marriage after lust has dissipated.

    I think prostitution should be legal and up front, but there has to be a major change wive’s of America before that happens. If “hurt” didn’t accompany the process it could happen. But for most women their is huge sense of betrayal and hurt involved. Hence the pressure on lawmakers to make it illegal (you shouldn’t need to ask where the pressure originates).

    Reply

  55. @ shen

    Not a bad business, pron.

    @ Spark

    You should read some Seattle history. At one time, prostitution was something like a third of the city’s tax base. Women were given the vote and shortly after they all closed down. So women lost the vote until a-19.

    We’re a progressive city. But we’re a pragmatic one as well.

    Reply

  56. I took a look at the patent. Its a general wish list of any thing you might want to wish you could do, if and when, and maybe how but that is never stated. Just “You can connect with audio data and down load it.”

    I hope they get their buts kicked big. PS, if they win, every down load site ever should have to pay them millions, then —- DELETED. Maybe someone can patent how government works and sue the us government to make it cease and desist. LOL ” width=”19″ height=”19″ alt=”grin” style=”border:0;” />

    Reply

  58. Man, MDN has it going on.

    I vote for legalized prostitution. Never been to one, but I see no reason it should not be legal.

    <b>As for the topic.<> Anyone now how often Microsoft get sued by some small company claiming to have invented something and now they want their cash? I don’t really keep up with MS so I don’t know.

    Seems to happen a LOT to Apple.

    Reply

  64. This patent is ALL wrong… it does not cover the way itunes works… your computer does not connect to the itunes network to load your ipod when you plug it in, all it does is simply get the content you tell it to get from your ‘computer’ when you plug it in, I can write a script in 2 minutes that would do that with ANY portable media device..

    sure your computer got the content from the internet.. but your ipod is not getting it in realtime from itunes… stupid attorneys.. stupid shi11y companies

    Reply

  66. We should be like the Dutch…make prostitution legal. Brings in tax dollars, reduces the spread of disease, reduces sexual assaults and best of all, its the perfect gift to give to the person who has everything. And yes Ampar, they take coupons.

    Reply

  67. “These and many other morality-based laws (which virtually all laws are based) is to aid in keeping society from degrading all too far and fast.”

    Then why on earth are GW and his cronies still running this country into the ground? Oh, I forgot; executive privilege. Oh, I forgot again; when you have enough money and crooks behind you to avoid or ignore laws. I think we’ve been degraded enough in the past 7 years, thank you.

    Reply

  68. The simplest and most effective reform to fix the US Patent System which is both broken and the laughing stock of the rest of the world is to “require” the actual invention to be produced within a time frame – say 12 months and failure to produce it would result in the patent being struck out. It would not have to be market ready but a fully working prototype should be available and appropriate evidence of its existence filed with the patent office to keep the patent filing current.

    Patents are supposed to protect inventions. An idea is not an invention but an idea if documented can be protected via copyright until it becomes and invention and can be patented.

    To follow the logic of these plaintiffs, any business model would only ever be allowed to be used by one business, therefore every business will be a monopoly.

    As for that crappy judge in Texas, someone ought to file a suit against him for breach of patent because his actions and behaviour have the precedent of Hanging Judge Jefferies of the 17th Century – a clear precedent.

    Reply

  69. I’ve started to read the patents…unfortunately, don’t have time to finish them now.

    Two things come to mind:

    #1: These patents were IMO written by a lawyer, not the inventor. This suggests to me that the intent was never to protect what the inventor intended to have built, but to be predatory over what someone else invented, to then usurp the claim.

    #2: The basic concept does not appear to be original, but is derivative: its essentially “Hey, if we can distribute email text, we can distribute other electronic files too, so let’s patent it!”

    Thanks, but that’s prior art. People (such as myself) were distributing “other than simple text” electronic media back in the 1980s (via UUENCODE / UUDECODE in unix). And it didn’t matter which of my “media players” I logged in on: they marked that file as ‘read’, showing that the data status was synchronized.

    -hh

    Reply

  70. (staying off the original topic)

    I don’t know whether you use the word ‘morals’ as “get married before you have sex” or “pick a fight with somebody your own size”, but in terms of right and wrong, I’d say prostitution belongs in the latter section. Most business deals involves one part winning a bit more, sure. But when you get paid to have sex with somebody, you can be sure it will cost you more than you bargained for.

    You want your daughter, or your son, to be a whore?

    Reply

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