For those podcasters who make available original programming featuring interviews or audio they originate themselves or who own copyrights to any music they distribute, they need not worry about the Recording Industry Association of America, the trade group which represents the recording industry.
But, lately – especially in podcast discussion groups – podcasters are wondering if they might be in the RIAA’s gunsights.
YES. If history is any indication, you can bet on it.
The problem is: it's file sharing - not in the sense we have come to know over the last few years - but file sharing just the same.
Terminology and definitions continue to evolve in this new world of audio transmission. But, I don't know what else to call it when a user subscribes to a podcast and he or she requests digital information via download because someone on the other end is offering it. Of course, whether or not this file contains copyrighted material provides the real condundrum.
Let's say you're a podcaster and you originate a 15 minute podcast each week highlighting your favorite cuts from CDs you recently purchased. You have hundreds of subscribers who download your show. Aside from the addition of your voice, this is - in effect - the same thing the RIAA has been suing thousands of people for over the past few years. It is still distribution of copyrighted material, without royalties collected on behalf of the copyright holder.
Tell me how you define it any other way. We can't call it broadcasting. We can't call it streaming. What is it then?
You may not have the reach of a Grokster or Kazaa, but when somebody downloads your podcast, the RIAA may argue you are file sharing just the same. And if it’s copyrighted material, you are distributing it without permission, remuneration or royalty to the artist(s) who own it. This is exactly the issue with peer-to-peer file sharing that has infuriated the RIAA, only now the distribution method is achieved in a more direct fashion.
You can be assured the RIAA is watching podcasting very carefully and in my opinion it's only a matter of time before they step in and demand a graduated royalty structure be established for podcasters.
David Luebbert writes at blog.lextex.com:
It looks to me like the license required for a podcast, beyond the performance license provided by ASCAP, BMI, and SESAC, is a master use license, which as stated by SoundExchange "must be licensed directly from the SRCO [Sound Recording Copyright Owner]". This is a disaster, of course.
No one can afford to negotiate such licenses for a program because of the administrative overhead. The copyright owners, if they are thinking rationally, are not going to grant such licenses because they would think of it as an uncompensated recompilation of their product. As far as copyright law is concerned, creating a podcast using copyrighted work, is equivalent to creating a CD compilation of many artists works. This is due to the interactive features of podcasting (downloadable, rewindable, and fast-forwardable).
The problem that causes podcasting to run afoul with U.S. copyright law is that the law (justly) gives all rights to the composer and performing artists for their respective contributions and then crafts specific, narrowly drawn exemptions for radio and digital streaming services specifying statuatory royalty fees that the artists can't negotiate. Podcasting does not fit the currently crafted exemptions.
(Continued...)
