Podcasts do not seem to qualify as non-interactive digital performances.

SoundExchange's page for Artist's, Artist's Agents and Producers contains this statement:

"Royalties Collected by SoundExchange
SoundExchange was designated by the U.S. Copyright Office to administer the collection and distribution of the statutory or compulsory license available to digital music service providers. SoundExchange collects royalties from "noninteractive digital" performances reported by cable music services, including residential Muzak, DMX, and Music Choice, webcasters, and satellite radio primarily XM and Sirius. The term "noninteractive" means that the subscriber chooses a channel rather than a particular song, and the songs that our licensees transmit cannot be manipulated by the listener, as in fast forwarding, rewinding, or downloading. Downloads are reproductions and are considered a different right not covered by statutory license and thus not part of SoundExchange's responsibilities. Such rights must be licensed directly from the SRCO."

Since a podcast is initiated by download, and is played through a player which does allow rewinding and fast-forwarding, it would seem that a podcast does not qualify for the statuatory license offered by Sound Exchange.

It looks to me like the license required for a podcast, beyond the performance license provided by ASCAP, BMI, and SESAC, is a master use license, which as stated by SoundExchange "must be licensed directly from the SRCO". This is a disaster, of course.

No one can afford to negotiate such licenses for a program because of the administrative overhead. The copyright owners, if they are thinking rationally, are not going to grant such licenses because they would think of it as an uncompensated recompilation of their product. As far as copyright law is concerned, creating a podcast using copyrighted work, is equivalent to creating a CD compilation of many artists works. This is due to the interactive features of podcasting (downloadable, rewindable, and fast-forwardable).

The problem that causes podcasting to run afoul with U.S. copyright law is that the law (justly) gives all rights to the composer and performing artists for their respective contributions and then crafts specific, narrowly drawn exemptions for radio and digital streaming services specifying statuatory royalty fees that the artists can't negotiate. Podcasting does not fit the currently crafted exemptions.

It seems like the long term solution is to lobby Congress to add podcasting to the U.S. copyright law as an activity elligible for statuatory licensing. Until then, I hope businesses can be formed which which can host podcasted musical programming from foreign countries that do not enforce the terms of current U.S. copyright law.

The actual language makes it more clear. Here's the statutory language: "(4) An ''interactive service'' is one that enables a member of the public to receive, on request, a transmission of a particular sound recording chosen by or on behalf of the recipient." In other words, I can't "podcast" you a specific set of songs that you request. What I *can* do though is put together my own set of songs and podcast those.

-- Bret

It does look a podcast would qualify as a "non-interactive digital transmission" according to that definition.

SoundExchange's declaration, though, that "downloads are reproductions and are considered a different right not covered by statutory license" is a very strong statement. It looks as though their reading of the law leads them to believe that they are not allowed to accept licensing fees for such activities because they are not licensible.

I do see a clause in Section 114 that would seem to demand an interpretation that bars statuatory licensing when download is encouraged or allowed.

Here's how I parse the statute:
(114)Scope of exclusive rights in sound recordings
    (d)Limitations on exclusive rights
      (2)Statuatory licenses of certain transmissions
            (C) In the case of an eligible non-subscription transmission OR other irrelevant cases...
                (i) thru (xii) A set of requirements that an eligible non- subscription transmission must pass to qualify for statuatory licensing

Requirement (vi) reads:

"(vi) the transmitting entity takes no affirmative steps to cause or induce the making of a phonorecord by the transmission recipient, and if the technology used by the transmitting entity enables the transmitting entity to limit the making by the transmission recipient of phonorecords of the transmission directly in a digital format, the transmitting entity sets such technology to limit such making of phonorecords to the extent permitted by such technology;"

Since the whole purpose of poadcasting is to induce a large audience to make a phonorecord (ie. make a downloadable copy) of a digital transmission, it looks like this clause would disqualify a podcast from receiving the statuatory license.

Requirement (iii) in this series also would seem to interfere hideously with podcast statuatory licensing of copyrighted works. It reads:

(iii) the transmission �
    (I) is not part of an archived program of less than 5 hours duration;
    (II) is not part of an archived program of 5 hours or greater in duration that is made available for a period exceeding 2 weeks;

Here's the archived program definition:
"(2) An �archived program� is a predetermined program that is available repeatedly on the demand of the transmission recipient and that is performed in the same order from the beginning, except that an archived program shall not include a recorded event or broadcast transmission that makes no more than an incidental use of sound recordings, as long as such recorded event or broadcast transmission does not contain an entire sound recording or feature a particular sound recording."

Podcasts are predetermined program that are available repeatedly on the demand of the transmission recipient and are performed in the same order from the beginning.

The funny exception on the end means that if a podcast uses only fragments of licensed works and do not "feature" them, they are free of this requirement and can still get the license.

To back up now to requirement (iii), if your archived podcast presents entire licensed works, it cannot last less than 5 hours. The idea here seems to be that if it's shorter than 5 hours long, it's too easy for receiving users to locate a particular licensed work within the program and listen to that by itself.

If your podcast does last longer than five hours, you can get the statuatory license if you only offer it to the public for less than two weeks duration. The copyright holders do not want word of mouth to get around that a particular archived program contains one of their works so that it becomes a well-known target for those who want to get their own recording of the work by stripping it out of the podcast.

These last two requirements seem to damage the prospects of doing musical podcasts that are similar to what is performed on broadcast radio stations.

A five hour musical transmission at a reasonable sampling rate would be hundreds of megabytes in size. This might become tolerable when BitTorrent becomes more widely used and broadband transmission speeds improve another order of magnitude or two. For the next two or three years, this requirement is debilitating if you wish to do musical podcasts as I do.

Again, I hope that foreign safe harbors outside of the U.S. can be constructed to host musical programming away from the reach of the current onerous U.S. copyright law.

You nailed it, David. Check out my podcasts. Open them in iTunes or on an iPod and you'll see that they're all over 5 hours. And I delete them after two weeks.

Bret

But Bret, did I nail the interpretation of requirement (vi) also? You obviously feel that you are not taking "affirmative steps to cause or induce the making of a phonorecord by the transmission recipient".

I can see that posting a podcast does not cause a user to make a copy, but that damned verb "induce" is awfully broad.

There's not a specialized definition of what it means "to induce" in the statute, but the dictionary definitions that Federal courts have used are �To lead or move by influence or persuasion; to prevail upon,� or alternatively, �To stimulate the occurrence of; cause.�

Doesn't providing a download icon for a podcast "stimulate the occurence of" the making of a phonorecord by a user?

I would very much like to do as you are doing, but I don't want to have to defend against an infringement suit where the potential liability is $150,000 per copyrighted song times the number of copyrighted songs used in a program times the number of downloads.

I've read the posting above...very informative and interesting. I understand the public performance componant to licensing for poscasts and the fact that podcasting doesnt comply with the compulsory framework set for sound recordings (hence the need to license directly from SR copyright holders...yikes). What I'm not certain about is the other end of the music publishing spectrum: mechanical licensing. Would a poscast necessitate a mechanical license or is the download of a poscast not considered a mechanical reproduction if, for example, you didnt know what song(s) you were getting with the podcast?

Hi gang,

Just dropping in -- I imagine more and more of us will as this post is starting to show up pretty high on the Google search for "music license podcasting."

Great thread -- very helpful, and encouraging to read about your approach to licensing. I'm hoping for a couple of clarifications... Earlier in the thread you say "Open them in iTunes or on an iPod and you'll see that they're all over 5 hours. And I delete them after two weeks. " So I just did -- very cool. but i'm confused -- the podcast that's up right now on your internet.pro site is your Dec 29th, 2004 podcast (you're off at PC Forum right now) -- and it's only 29 minutes long.

Since that's exactly what I'd like to do on my site -- about a half hour a week of stuff -- I'm hopeful that I just misunderstood the earlier part of the thread which was talking about 5 hours long... Could you set me straight?

I'd also like to ping this thread on the question the last post raised -- what are your thoughts about the mechanical reproduction angle?

m

On the time question, I rountinely podcast 30-60 minutes of programming, followed by 4 or 5 hours of quiet meditation. The silence compresses down to about 5-10 megs.

On the mechanical rights question, this is a difficult one, and you should consult an attorney before you walk down this path. One view is that sound files embedded in a longer recording, which cannot be excised easily to make independent recordings, are covered by the statutory license. Another view is that you'll need yet another license, this one from the Harry Fox agency. (http://www.harryfox.com/).

Bret

I'm down to just grinning now -- I burst out laughing when I read your reply.

But... My iTunes thinks your current podcast is 40 minutes long, Media Player thinks closer to 50... But neither think it's 5+ hours. Do you podcast the meditative silence as a separate file?

Regarding the mechanical license -- I take it that you are taking the "longer recording, cannot be excised easily" view, right? I'm presuming that the SoundExchange license mitigates the $150k/song exposure for copyright violation. If somebody were to challenge your interpretation on the mechanical rights side, what would your exposure be?

Bah. Replying to my own comments... Sorry about this.

But I just talked to the folks at the Harry Fox agency and asked them what their position on mechanical rights is.

Interestingly -- the fellow said that at this time their publishers are monitoring the situation, but not asking for podcast licenses. So he said that the BMI license that I already have would be sufficient to do podcasting. Then, when I prompted him about the SoundExchange license, he said "oh, yeah I guess you might need that as well."

I encouraged him to put a little write-up to that effect on their web site and he allowed as how that sounded like a Good Plan and that he'd talk to the powers that be.

So there's a little support for your position on the mechanical licensing front.

umm, it is definitely becoming more difficult to download free music from the internet now...

in my case its vice verse, I Podcast 4-5 hours and meditation for 30-60 minuets
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Hello again...

Since I rassled with the licensing issue a lot while putting my site up, I just did a podcast about it. Here's a link to the podcast, and here's one to the site. My view echoes some of the comments I made above, and the podcast expands on that theme a little bit.

This is a huge issue and I don't see the recording industry cooperating or making it easy for podcasters anytime in the near future.

Fortunately there are many alternates for podcasters to find and use music in their shows. I discuss several of these options on my How to Podcast Tutorial site.

The podcast on this post is really informative and easy to understand, thanks Brett

The only thing I would like to add is that if you don’t mind using original music by independent artists then music on a royalty free or creative commons license is worth a consideration.

The web is full of talented independent composers, bands who supplement their incomes from making licenses available for their music.

Lee Pritchard
www.mediamusicnow.com
blog: www.leepritchard.co.uk

Thank you for this Podcast! Very useful! Regards Alex. http://reallydrugs.com