*A correction was made to the original version of this story.
Los Angeles - The U.S. Patent and Trademark Office announced on Tuesday that it will revoke a patent on live concert recording technology owned by Instant Live -- which was a part of Clear Channel Communications until it was spun-off along with other assets in December 2005 to form Live Nation -- following a successful challenge launched last year by the Electronic Frontier Foundation (EFF), a digital civil liberties advocate. The patent was related to the process used by Instant Live to capture and mix live music concerts and then burn them onto CD so fans can purchase them at the venue immediately following the show.

The EFF petitioned the Patent Office for a re-examination of the Instant Live patent in February of last year; the Patent Office granted EFF's request in April 2006, and announced its Notice of Intent to cancel all five of the patent's claims on Tuesday. "Bogus patents like this one are good examples of what's wrong with the current patent system," said EFF staff attorney Jason Schultz.  "We're glad that the Patent Office was willing to help artists and innovators out from under its shadow."

Clear Channel announced in April 2004 that it had acquired a business-method patent on making live concert recordings, and soon after launched an aggressive campaign against companies similar to its Instant Live, including Disc Live, claiming it had exclusive rights to the technology. New York-based Disc Live by early 2003 had already recorded acts and sold instant CDs at shows featuring the Allman Brothers and Billy Idol, but encountered obstacles in 2004 when Clear Channel prevented the company from recording shows and selling CDs at Clear Channel venues on the Pixies' reunion tour. "It is a business, and it's not going to be 'we have the patent, now everybody can use it for free,'" Instant Live director Steve Simon told Rolling Stone in May 2004.

Disc Live countered that Clear Channel's patent was not relevant to its own live recording technology, even inviting to the company inspect Disc Live's system and see for itself. "Neither Clear Channel nor their lawyers have provided us with any such details as to why their patent is relevant to the DiscLive system, nor have they accepted our invitation to inspect our implementation," Zach Blair, then chairman and CEO of Disc Live parent Immediatek, said in May 2004.

Failure of the patent owner -- at this point, Clear Channel spin-off Live Nation -- to reply to questions about its patent was also cited by the Patent Office in its Notice of Intent to cancel the patent. "The patent owner failed to timely file a response" to questions mailed on March 31, 2006, the notice reads.

The EFF's challenge pointed to "prior art," or technology developed by Telex Communications as early as 1997 that described a process the EFF argued is identical to that contained in the patent. The EFF also said Clear Channel was "restraining innovation and free expression," both by inhibiting independent artists' First Amendment rights by preventing them from recording their own concerts for distribution to fans at their concerts, and by threatening patent litigation against competing companies offering similar technology, such as Kufala Recordings.

Kufala, a live recordings label launched six months before Instant Live, said that like Disc Live, it had also run up against Clear Channel's ban on using any technology other than Instant Live to record shows at its venues. "[The patent] is specific to certain technology you could go buy at Fry's and do yourself," said Kufala president Brady Lahr, in a Digital Media Wire story on live recording labels. "You just add one more gear, and it voids their patent. But Clear Channel does have the venues, and they have the leverage -- not to force bands to reject our offers to record them -- but they can incentivize bands to do it, because Clear Channel is producing their entire cross-country tour, in mostly Clear Channel venues."

"Everyone loses if we allow overreaching patent claims to restrict the tremendous benefits of new software and technology development," said Theodore C. McCullough, a patent attorney who teamed with the EFF in its challenge, in a statement.

Live Nation, the current parent company of Instant Live and holder of the patent, had no comment.

*Correction: The original version of this story cited Clear Channel as owner of the patent. Clear Channel contacted DMW to inform us that, "the patent ownership for live concert recording technology was transferred with the other entertainment assets when Clear Channel divsted its concert division, what is now knows as Live Nation."

The EFF said it was not aware that this transfer of ownership had occurred when it filed its petition for reexamination with the U.S. Patent & Trademark Office in February 2006, and in fact did not learn until now that Clear Channel no longer controls the patent. EFF staff atorney Jason Schultz added: "Clear Channel was the entity that started threatening people once they acquired the patent and the reason [the EFF] took it on."

When asked why Clear Channel failed to correct the record on who owned the patent when the EFF filed its reexamination request, or on the numerous media reports after December 2005 that cited Clear Channel as the patent holder, a company spokeswoman told DMW: "We have diligently corrected the record with all media outlets and other writers of which we are aware - 100 percent of the time."