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.