Yesterday, news broke that the highest-profile opponent of podcasting, "patent troll" Personal Audio LLC, and podcaster Adam Carolla had reached a settlement. The settlement referred to a court-approved press release, which was finally published (PDF) today on Personal Audio's website.

The press release really includes nothing new. Through discovery, Personal Audio simply found out podcasters—even famous ones like Carolla—just don't make that much money, so it isn't interested in suing them.

It includes the odd tidbit of naming six big podcasters it won't sue, including Joe Rogan and Marc Maron. The six named podcasters have all been supportive of Carolla and presumably are in there because Carolla's people insisted they be "immunized" in writing.

The relevant part of the press release reads:

In addition to announcing its agreement with Mr. Carolla, Personal Audio would like to take this opportunity to issue a more general statement to the podcasting community. Previously, Personal Audio announced that it did not intend to sue any podcasters making modest amounts of revenues for infringement of US Patent No. 8,112,504. Indeed, Personal Audio has dismissed several podcasters from litigation because it was not worth litigating over the amount of damages involved. Personal Audio understands that, notwithstanding its dismissals of several podcasters and its previously-publicized intention not to sue podcasters making modest amounts of money for infringing its patents, there is still a great deal of concern in the podcasting community surrounding potential patent litigation from Personal Audio. Accordingly, Personal Audio would like to again announce that it has no intention of suing podcasters that are making modest amounts of money from podcasting. In particular, Personal Audio has no intention of suing the following podcasters: (1) the Nerdist; (2) Ear Wolf; (3) Podcast One; (4) Joe Rogan; (5) Marc Maron; and (6) Jay Mohr. Through this disclosure, Personal Audio hopes that it will assuage the podcasting community's concerns and speculation regarding potential future patent litigation.

Of course, speculation can continue because the patent company doesn't make specific promises in this document—except to the six podcasters close to Carolla.

It's tough to blame Carolla for settling. The nearly $500,000 he raised absolutely would not have been enough to push this through to a trial. In a fundraising update, Carolla's CFO estimated they would have needed to reach $1.5 million to do that, and that is not an unreasonable estimate. Based on Personal Audio's earlier statements about wanting to walk away, it's widely assumed Carolla paid nothing to Personal Audio, so he didn't feed the problem.

However, he did agree to a six-week "quiet period" where he wouldn't condemn Personal Audio while it pushes forward with a trial against what it considers more valuable targets: the three television companies it continues to litigate against, for distributing their "episodic content" on the Internet. He also took the odd step of picking six specific podcasters who would be "immunized." Even if that was well-intentioned, it gives the impression of creating a list of buddies that he wants to make absolutely sure are off any future target list.

Uncertain future

There's nothing to stop Personal Audio from deciding in the future that its definition of what constitutes a "modest amount of money" has changed or that a particular podcaster has become rich enough to warrant the attention of its lawyers. It also doesn't stop them from suing people at different points in the podcast "distribution chain," like people who make software or platforms for podcasts. (Apple was previously sued by Personal Audio and lost in 2011, so it probably has a license to the whole patent family.)

If podcasters were threatened in the future, they would have a good argument that this press release amounts to "promissory estoppel," which would prevent them from proceeding with the case.

"They could argue that if they aren't earning more money than people like Adam Carolla and Joe Rogan, they should have been able to rely on a statement like this," explained Daniel Nazer, an attorney at EFF who has clashed with Personal Audio.

"But they'd have to show that in court, and it wouldn't necessarily be easy," said Nazer, who is pushing ahead with a separate legal attack on Personal Audio's patent in the US Patent Office. "However, if they were actually intending to sue small podcasters, this [press release] would be a very silly thing to write."

In the end, Carolla was facing a trial that could have cost him another million dollars, in front of a judge who may have been very irritated at the idea of putting on a jury trial when the defendant was given a walk-away offer. (And no, that's not just an East Texas thing.) And small podcasters—the kind Personal Audio was sending threatening letters to a year ago—should feel some relief.

"They fought hard and they did well," said Nazer.