So ASCAP is issuing licenses for certain uses of music in “pod-casts”. A podcast is a downloadable, radio-style program that listeners can enjoy at their leisure. (Here are two particularly excellent examples.) Importantly, podcasts are intended to be downloaded in their entirety then listened to, not streamed in real time.
Wil Wheaton expressed extreme frustration with this, finding it inconceivable that composers would want to be compensated for the use of their works in a podcast given the promotional value of such use. He asks:
Do I understand this correctly? If I love a band (let’s pick The Shins, because that’s what iTunes is playing right now) and want to share a great song (New Slang, for instance) to a large audience in my podcast, and talk about how much I love the album, and encourage all the listeners to go buy it . . . I have to *pay* ASCAP for the privilege? I have to *pay* them for exposing an enormous audience to the music? An enormous audience who may want to *buy the fucking record*?!
Simultaneously most importantly and least importantly, “New Slang” and all the other Shins tunes are licensed by BMI, not ASCAP. An ASCAP license will do you no good at all.
But there’s a more important reason an ASCAP license for your podcast is worthless. ASCAP members grant ASCAP the right to license their works for “non-dramatic public performance”, and nothing else. And the license they offer for “pod-casting” grants only the right to make performances by way of internet transmissions.
Podcasting is not performance; it’s the making of a physical copy. Podcasters know and intend that end-users will download the material to their iPods and listen to them in the car. I suspect that the inclusion of “pod-casting” in the description of the licensed activities springs from a misunderstanding of podcasting; they think it’s just a transmission, like webcasting, and it isn’t.
And even if ASCAP really, truly understood and intended to license podcasts, and they wrote it into the contract, it still wouldn’t make any difference. They’d be exceeding the scope of their authority as an agent, and that provision of the contract would be unenforceable.
This is not to say that we shouldn’t find some convenient way to license podcasts, just that ASCAP won’t help (absent a statutory redefinition of “performance”).