ASCAP Licenses Podcasting; Doesn’t Get Podcasting
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”).
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Wil Wheaton: So, ASCAP to *license* podcasts? Readers respond.
Wil “now starring in CSI” Wheaton says: Your post at Boing Boing about ASCAP licensing just made my blood boil. 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 sha…
Trackback by Boing Boing — February 16, 2005 @ 6:24 pm
It’s the making of a digital copy, and making that digital copy available for download. That seems to be a
timeshifted performance to me. How would it be different than making an on-demand stream available?
Does knowing that all your cable subscribers have a Tivo make your broadcast less of a performance?
This seems like a very natural definition of performance to me, especially in a future that is going “all on-demand.”
Comment by kj — February 16, 2005 @ 8:56 pm
An excellent question.
The line between allowing users to stream content and allowing users to download content permanently is one that is very hard to justify in technological terms, though it makes a huge difference in copyright law.
We’re talking here about the difference between distributing copies and performing the work publicly. When the law was written, it was quite clear which you were doing. If you were on a stage singing to a bunch of people, or on the radio playing back a recording, that was a performance. If you were making copies of the recording and handing them out to people, that was distributing copies.
I understand that there is no technological reason for a difference between distributing a copy of a podcast and making a public performance of a podcast. In each case, you’re sending the same bits down the wire, just in a different wrapper. For example, I know this is weird, but I think linking to an M3U playlist is a performance, and linking to an MP3 file is distribution of a copy, even though the M3U just directs the player to the same MP3 file.
The “timeshifting/space-shifting” fair use exception requires that the consumer be the one doing the timeshifting or space-shifting. Here, the podcaster is doing the time and space shifting for the user.
This is getting long, but think of it this way. I have a podcast that consists of one song — say, some Shins song. I get a license from the appropriate people to perform publicly the sound recording and the underlying musical composition (not that this use is what ASCAP is offering to license). And I stick an MP3 file up on my site, and let people download it. Is that a performance, or is that the distribution of a copy? Is it both?
Comment by Joe Gratz — February 17, 2005 @ 4:13 pm
Joe, great analysis. It tells us, basically, that the law can’t possibly keep up with technological innovation, and so it ought to just get out of the way. We need an extremely inexpensive, statutory blanket license for including music in an amateur podcast.
Will we get one from this Congress? Not a chance.
Comment by JD Lasica — February 18, 2005 @ 1:13 am
[...] oth-mouthed ranting that goes on on some other blogs. You can read Joe’s article at joegratz.net � ASCAP Licenses Podcasting; Doesn%u2019t [...]
Pingback by Podcastplayer.org news » joegratz.net � ASCAP Licenses Podcasting; Doesn%u2019t Get Podcasting — February 19, 2005 @ 9:17 am
It’s ironic that someone can use something like StreamRipper or RadioLover to record their favorite streams and put them on their iPod, but if the ‘caster provides a mechanism for loading a broadcast onto an iPod it becomes subject to all these laws that are so based in the past…
I would say that as long as a broadcast consists of multiple songs (subject to the CARP requirements on frequency, etc) it shouldn’t be considered a copy but rather than a performance. After all, you’re making a copy of the overall program that includes musical performances, not copies of individual performances.
We should see what SoundExchange eventually says about this. They do not license song downloads, but they do license on demand broadcasts.
Comment by Rusty Hodge — March 4, 2005 @ 6:56 pm
I don’t know guys. I’m not a lawyer and I’m not about to state a legal opinion. But I am a musician and you might be interested in musician opinions. As far as ASCAP goes, I think they’re trying to do the right thing by musicians who want their royalties. Seems like most of the people complaining about that don’t make their living performing music. So, personally, I hope the ASCAP license remains intact.
Many “Joe Blow” artists really don’t have an issue with having their music played “royalty-free” because they need the promo and can’t afford to pay for the real deal. Also, because the amount they’d make from regular performance of their “pretty much unknown and somewhat less than popular” work would probably be close to “zero”, if not ZERO. So, I’m not talking about the unsigned bands out there. But a major label artist doesn’t need promo from people not willing to pay his royalties, which might be substantial. We all should respect that.
That’s just my personal opinion.
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