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Sunday, March 20, 2005

Podcasting update

[Podcast version (mp3, approx. 5 minutes) here.]

I'm still working on getting a music podcast series going on this site or somewhere hereabouts. But right now I'm hung up on the legal side of things.

What does it take to play, say, James Brown doing "I Feel Good" in a podcast, and still be legal?

Well, it's clear that you've got to pay for two different licenses to do that. (At least two -- two that I know of.) One is from the composers of "I Feel Good," or whomever they've sold or left their rights to over the years. That license gets you the right to publicly perform "I Feel Good" on the internet. And if all I want to do is sing it myself in a blog-linked .mp3 file with my friends on kazoo, that's all the license I need. You can get licenses to cover a year's worth of that stuff for about $750 total from the three outfits who play the enforcers for the composers -- ASCAP, BMI and SESAC.

Actually, me doing "I Feel Good" might be good for a couple of laughs, but I'm not sure it's worth that kind of dough.

So then there's the right to use the musical recording of James Brown singing it, and that belongs to a separate copyright owner. (It's the little (p) on the CD label, rather than the (c) next to the song.) That right typically belongs to the record company, but they generally use the reviled knee-busters over at something called the RIAA to do their collection work for them.

Now the RIAA was never too keen on this internet music thing, and for a while they were threatening to make life tough for folks like Radio Paradise, who stream traditional-radio-like content over the web 24 hours a day. But Congress stepped in and required the RIAA to play ball with "webcasters." Now the law specifies just how much the RIAA can charge webcasters for the annual right to play their recordings. And the RIAA has set up a division called SoundExchange to run the government-mandated licensing program.

As an eager podcaster wannabe, I've been trying to see how much it would cost for me to get a SoundExchange license. And so far, I'm stumped on two points. First, there are two kinds of licenses that could potentially apply to a guy like me: a commercial webcaster license, or a "small" commercial webcaster license. They're different in how the royalty rates are set up. As I understand it, the small webcasters pay a percentage of revenue, whereas the other commercial webcasters pay a set fraction of a penny per performance. But there are minimum annual fees under both arrangements, and they're actually larger for the small webcasters -- $2,000 a year rather than $500 a year. So would I rather be in with the "bigs" rather than the "smalls," given that I probably won't have enough revenue or traffic to exceed either minimum?

Second, and more fundamentally, it's not 100 percent clear to me that podcasting is "webcasting" within the meaning of the copyright rules. My show would be like Radio Paradise, which is definitely "webcasting," only in the senses that (a) I'd mix in songs by all sorts of artists, (b) I wouldn't announce them in advance, and (c) the listener wouldn't be able to select any particular song. But it would be unlike Radio Paradise in that the listener would be able to start and stop the show, contained as it would be in an .mp3 file; further, my show would run for only around, say, 45 minutes, and sit on my server at least until the next one is ready, probably weekly. So maybe I wouldn't be a "webcaster" at all.

And if I'm not a "webcaster," I believe I can't force SoundExchange to let me play under the mandatory licensing scheme. I'd likely have to track down individual record companies and negotiate deals with them, which seems highly unlikely.

Well, nobody said it was going to be easy. I'll try calling SoundExchange this week and see if I can find out what they're thinking about this. Guess it couldn't hurt to do some hardcore legal research on the copyright law myself as well.

I know there's a kazoo around this house somewhere.

Comments (4)

Talk to Paul Anthony at the cool company known as Rumblefish in downtown Portland. He knows tons about that stuff.

Nice to meet you Jack - we're going to launch a podcasting music service in a month or so like I told you on the phone with a partner of ours.

Should be awesome. Looking forward to you testing it out.

Send me your info. and I'll keep you in the loop. Legal music for podcasting is almost here.

This is an interesting discussion. Even though you have a good voice for this, to make it work as an audio presentation (unless you do impressions - opps, are inviting libel suits?) you really need music or some other probably copyrighted material. Otherwise, you have a books-on-tape.

For my 2 cents, I get more out of reading/re-reading and reflection (is that good/bad I have that much time to parse your words?) than hearing it.

Having said that, for $750/year, the music would certainly add to it even if I have different tastes.

I forgot, if you pay $750, is the music in your MP3 podcast copy-protected or un-hifidelitized? It's easy enought to edit downloaded MP3s.

The $750 would allow me to perform the music, but not play the professional recordings. Yes, it would be easy enough to edit an mp3, which is why I suspect the RIAA doesn't want to license podcasts.

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