Legality Of Using Music In Podcasts Remains Foggy
April 11, 2005

On March 31, FMQB reported on the launch of Loyal Pods, a joint venture between Bridge Ratings and Loyal Ears that allows radio stations to offer podcasts to listeners.  In recent months, we've also seen a variety of companies in the music industry jump on board and make music or content available as a podcast.  For example, last month, Warner Brothers announced that they had paid for placement in a well-known podcast.  They bought time in The Eric Rice Show, allowing that podcast to include exclusive content from The Used.  As part of the deal, the hosts of the show will announce that the inclusion of the content was paid for by Warner.  Two other examples, U.K. based Virgin Radio and KCRW/Santa Monica, have both released content in the form of a podcast.

Despite the authorized uses of music and content in these select instances, podcasting is still more of an underground technology, used by thousands of independent, Web-savvy users.  According to a recent survey from the Pew Internet & American Life Project, roughly six million people have listened to podcasts.  This represents a potentially significant problem because the majority of the music and content has not been authorized for use.

The definition of a podcast has also not been clearly defined.  Should podcasts be classified as a form of broadcast or does it fall closer to the definitions of a narrowcast?  Or, are podcasts actually peer-to-peer transmissions?  ASCAP attempted to cover all instances of use and created two seperate experiemental licenses (non-interactive and interactive) that tried to deal with content used on, over, or through the Internet. Each of those licenses define a Web site, or an "Interactive Site or Service," differently.  In the non-interactive license, it is defined as "a site or service accessible via the Internet or a similar transmission facility from which audio content is transmitted to "Users" and from which "Users" may download or otherwise select particular musical compositions."  However, in the interactive license, the definition becomes "a site or service accessible via the Internet or a similar transmission facility from which audio content is transmitted to "Users" and from which "Users" may download or otherwise select particular musical compositions."

Even though specific sets of rules and licenses are starting to appear, or have been around for a while (such as the Creative Commons), there is less incentive for those independent users to follow any set of rules.  "How do you avoid making podcasting another way to file-share?" asked EMI SVP Ted Cohen at a Digital Hollywood event.  Still others believe that podcasting should be made more widely available.  "ASCAP's recently announced music licensing for podcasts is a step in the right direction," said Richard Sharp, CEO of podcasting portal PodChannels, Inc.  "But it would be much more helpful to the podcast community if they could make their licensing as simple as Creative Commons does."

Despite the wide variety of opinions on copyright infringement and the various definitions of podcasting, the consensus across the industry seems to be that there must be one set of rules that everyone can follow and enforce.  Without that, and with the quick development and release of new technologies, the only thing we can be sure of is uncertainty and confusion.

** QB Content by Drew Kondylas **

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