I had been planning to write about the pros and cons of “Tweet Seats,” weighing the potential of technology to complement live entertainment against its potential for intrusion and distraction. Whatever your opinion may be, I will no longer seek to address it, because such debates could become irrelevant. The reason for that worries me and I hope we will all find consensus as I explain.
Earlier this week, having seen some of my prior tweets and blogs on the topic of Tweet Seats, a regional theatre company (that has asked not to be named) shared with me a letter and supporting documents from the Global IP Law Group in Chicago, in which the firm, representing its client Inselberg Interactive, claims that said theatre has violated patents owned by Inselberg. What had the theatre done? They had a Tweet Seat night last year. The law firm asserted that U.S. Patent 6,975,878 covers the provision of “interactive audience participation at live spectator events,” and indeed that quote is from the patent document itself, which you may review here.
I am not a patent attorney or an expert in the field of intellectual property, but I can read, and I have reviewed this patent; I urge you to do so as well. It refers to a “method” which, among other things, involves “querying the spectators,” “processing the spectator data into results,” “transmitting the answers to a central processor,” and “broadcasting the results of the processing of spectator data.” It includes two line drawings, one which shows a device not unlike a Motorola flip phone from the 90s, and the other which shows three people using such device at a football game, with scoreboards that read “Answer A, B, C.” Although Tweet Seat events of which I’m aware do not show results on a commonly viewed screen, they are shared with anyone who cares to look at their device, both at the event and elsewhere, which the firm asserts is covered. Interestingly, the patent abstract notes that, “The method includes providing spectators with an interactive device”; while Tweet Seat events require people to use their own phones, but this doesn’t seem to have derailed the claim of infringement. It does seem a bit of extrapolation has taken place.
Deeper into the patent document you can also find what is referred to as a “Detailed Description of the Invention,” but in this case the invention is neither the device nor the software which would make such interaction possible. No, “the invention” is the idea of doing so. Nowhere does the patent suggest that Inselberg invented the smartphone or any of its underlying technology, nor does it make any claim to having invented Facebook, Twitter, LinkedIn or any other program, website or application which easily and freely permits people to communicate with each other and with venues, presenters and producers on smartphones. They patented the concept of using such things at some point in the future when the technology became available, and now that it has, they seek to profit from it or restrict it.
So whether you like Tweet Seats or not at arts events, whether you think anything of their sort is entertaining at sporting events, the intent of Global IP Law Group is to either “license this patent portfolio,” or shut down such uses, theatre by theatre, stadium by stadium, on behalf of their client. Through this patent, they would seek to monetize methods of communication that have already swept the world, albeit they seek to do so in a particular set of locations. They would charge a toll for free speech in theatres.
In the blog post I planned to write, I was going to discuss the fact that social media is extremely new, and that while it has gained staggering traction in a very short span of time (Facebook was only opened to the public in 2006; Twitter debuted even later), it is still in its infancy. A few decades from now, its integration into our lives, our entertainment, and perhaps even our art will be vastly more sophisticated; interactive media 2012 will look like radio in the 1920s or television in the 1940s. It is possible that our current resistance to social media as part of the live entertainment experience will give way to something less intrusive and more organic (if such a word can be applied to the meshing of the innately human performing arts and the fundamentally technological nature of electronic communication). But should we pay in order to explore that possibility?
The performing arts, largely because of their budgetary constraints, tend to not be early adopters of new technology. However, Twitter, Facebook, Pinterest and so many other resources are available for free (although one still must acquire a computer or smartphone and pay for internet access). But we make an easy target for claims such as those made in the name of U.S. Patent 6,975,878 because the arts do not have the ready resources to fight them individually or even necessarily together, and we are likelier to cease and desist than to challenge and persist, yet avoidance or capitulation would be unfortunate. We are lucky that this incursion on our efforts at creative communication encompasses professional sports, since that field has vastly deeper pockets, and may help to confront the concerns I’m spelling out. However, the Global IP Law Group asserts in a cover letter to their claim that several stadiums and arenas, including the Target Center, Xcel Energy Center and the Hubert Humphrey Metrodome have in fact licensed the technology from Inselberg; if this is verified, then we are already on a slippery slope.
It is unfortunate that this comes to light through experimentation with Tweet Seats, which at this point are far from widespread or de rigeur, but do evoke great passion from their detractors; many would be delighted to see them ended, but again, now is not the time to argue their effects (though I ask you to recall, if you can, the vehement response once upon a time to supertitles at the opera). If Tweet Seats are what alert us all to this wide-ranging patent which could close off a means of communicating with our audiences, of connecting with them in our theatres – perhaps even pre- and post-show and during intermission, which perhaps many would find less offensive – then I urge everyone to fly the flag of Tweet Seats as a right and a choice, rather than a service we must license.
I have kept the confidence of the theatre that shared this information with me because, sensibly, they do not wish to further draw the attention of the Global IP Law Group. But I have been able to show you the patent which is public record and, if you are a venue which has already been contacted, I am willing to be the conduit through which you may find others. If you have already held a Tweet Seats event, I certainly understand why you would not wish to alert the Global IP Law Group of your efforts, but perhaps you might use an intermediary to query the firm about its claims, on the grounds of considering Tweet Seats or some other interactive venture. But remember, Google is available to everyone. For free. So these firms may well find you anyway. They’ll probably find this post within minutes of my publishing it. However, I have spoken with another theatre which held a Tweet Seats event, and they had not been contacted with this claim.
Many people abhor when material that is considered offensive is defended under the principle of free speech, but certainly the arts have had to stand for their rights when they present material which some might find objectionable. In this case, the specificity of the usage to be defended, Tweet Seats, might be seen in and of itself as impinging upon creative work, or disrupting the experience of performance, and therefore an offense. However, commercially restricting the practice does raise issues of free speech using common modes of communication. Whether or not we employ Tweet Seats or something akin to them is a choice every organization should be allowed to experiment with and make on its own, as we work to use the very newest technology to connect with our audiences, in our own venues, and to maintain awareness and enthusiasm for our work when so many other options beckon and so many creative – and perhaps generally palatable – uses of technology have yet to be conceived.
Addendum: Late in the day that this post first appeared, the theatre that went unnamed as the recipient of the claim against their use of Tweet Seats reconsidered their request for anonymity and chose to waive it. The theatre in question is Goodspeed Musicals in East Haddam CT, where I was general manager from 1994 to 1998, and intermittently serve as a consultant.
I don’t quite know what to say other than I find this both heinous and totally unsurprising all at once.
From Facebook attempting to trademark the word “book” to this – is there a theme to this week or what?
They are more than welcome to get in touch with me. 🙂 Great post, Howard.
I agree with Morgan, however, it can be argued that the lack of prior action to enforce the patent indicates that the holder is trying to unfairly restrict and profit from an unexpected application of the patent. They did not file the patent to control tweeting at events, but think they somehow now own the rights to what is a free, and free speech, service or action. Tweet seats don’t even infringe on the gathering and processing of data concerning multiple choice activities since they are primarily (at least in our theatres) intended to get patrons to attend events they might otherwise not come to because of cellular phone usage restrictions, and to let other people know what a great time they had. I am sure some theatres plan a more interactive use, but again, they are merely turning the free use of a service to a special purpose, not trying to use the patent holder’s ideas to they make money per se.
[…] since I’m opposed to the idea, you might think I’m pleased to see this post from Howard Sherman. Mr. Sherman tells us that one of the theatres (they asked not to be named) after publicizing the […]
Patent law is broken beyond repair. The arseheads who approved this patent should be flogged.
Are the identities of those who approve patents disclosed? Shouldn’t they and their backgrounds be exposed, so that their professional careers might be impacted by bad decisions? Before a final ruling on a patent application is issued, why isn’t it open to public commentary and review just like on these blogs? Perhaps that would be too democratic? And sensible? And cost-effective?
Troll City. We’re going to have to have this issue out at some point because patent trolling is very seriously wack.
We need a test case. How do spurious patents get invalidated, usually?
[…] Le gestionnaire des arts Howard Sherman affirme que nous sommes au début de l’apprivoisement des médias sociaux et que nos rapports avec eux sont appelés à changer au fil du temps. Il est encore un peu tôt, selon lui, pour mesurer l’efficacité de leur présence dans les salles de spectacles. Pour l’instant, il recommande que les utilisateurs de médias sociaux puissent communiquer avec leurs amis et leurs abonnés avant le début ou après le spectacle, de même qu’à l’entracte. Son billet se trouve ici. […]
[…] » Of Tweet Seats, Devices and Free Speech Howard Sherman […]
[…] On his blog, Howard Sherman, a theatre pundit, does an excellent job of capturing the essence of this case: Through this patent, they would seek to monetize methods of communication that have already swept the world, albeit they seek to do so in a particular set of locations. They would charge a toll for free speech in theatres. […]
[…] to the start of the show. Can we get busted for this? PS read this article by Howard Sherman on IP, theatre and tweet seats. You’ll be sitting there, shaking your […]