joegratz.net

In a slightly strange turn, BMI is now issuing licenses for podcasts. As I’ve argued before, podcasts are reproductions, not public performances, and it’s not clear to me that a podcaster buying a BMI license is getting anything for her money.

It wouldn’t surprise me to find out that ASCAP and BMI think that podcasting is both a reproduction and a public performance. They would be wrong.

There are two events that go into a podcast. The first occurs when the user (or automated software set up by the user) downloads an MP3 over the internet. The second, which typically happens at a later time, is when the user plays back the MP3, typically on a portable music player like an iPod. The first event — the download — is simply not a performance, in copyright terms. Nothing is rendered; no sounds are made audible. The second event — playback — is a performance, but it’s a private performance, typically occurring at the direction of the listener through the listener’s headphones. That’s not a public performance; thus, it doesn’t implicate the public performance right; thus, a BMI license is unnecessary.

As BMI helpfully points out, a podcaster would need all sorts of licenses to make this happen. Specifically, they’d need a license to make a phonorecord embodying the musical work (which you can get from HFA with no trouble at all) and a license to make a copy of the sound recording (which you’d have to negotiate with each individual record company).

(Keep in mind, podcasters: I’m not a lawyer. Check with yours before listening to what I say.)