podcasts: lost in a maze of twisty licenses, all alike.

Dear Lazyweb,

I seek armchair legal advice and/or precedents.

(This is probably stupid since odds are that I know more about the issues I'm asking about than you do, but hell, it's worth a shot.)

See, something I've been wanting to do for a while is some kind of "song of the day" thing, where I pick one of the songs I'm currently loving and post it: "here, you should all listen to this."

But, I'm having a hard time convincing myself that doing so would be legal, even though (wearing my DNA Lounge hat) I do pay the license fees to ASCAP, etc. for both our public performances and webcasts.

Plan B, which I'm fairly certain is legal, would be to program a "radio station" instead that streamed a set of songs on shuffle (which is exactly the mechanism I use for DNA Lounge Radio). But, that isn't really the same thing, and also sounds like a lot more work. So I'd rather not do it that way. (By "a lot more work" I don't mean technically, I mean more effort in playing song-gardener.)

Plan C would be to do a periodic "mix tape", meaning, 90 minutes of music in one chunk. I think I could manage that pace, since it comes out to around 2 songs a day if I do it weekly.

I'm pretty sure that streaming such a thing would be legal. But would podcasting it?

Who can tell.

Podcasting means that everyone who tuned in would be downloading one big MP3 file with 20+ songs in it. Is that covered by my licenses? I have no idea. Some radio stations do it. Are they breaking the law? Are things different for them because they happen to own transmitters as well?

I suspect that there are a lot of podcasts like that out there (just some guy posting songs that he likes this week, regardless of whether they are signed or not) but I don't actually know of any. When I look at podcast directories I find a lot of talk radio, a lot of unsigned-bands podcasts, and a few "real" radio stations. Am I wrong in assuming that what I'm describing is a commonly-done thing?

Some people try to solve the license problem by only posting non-RIAA music, or by only posting songs by unsigned bands who have given their explicit permission. I don't find that the signedness of a band has much bearing on whether I enjoy them. If I have to constantly have a conversation with myself that goes "I love this song! Oh, but I can't post this one," then I'll just give up and not do it at all. So, no, I'm not interested in doing it that way.

That's also why I'm not interested in solutions like "link to the song on last.fm" -- they won't have half the songs I'm interested in. Likewise, any solution where I have to jump through per-song legal hoops is no good.

I've read this: "Creative Commons Podcasting Legal Guide", which is... complete chaos, not to mention 50 pages long. Maybe it says that my licenses cover what I'm talking about, but I can't tell. And this: "Collegiate Broadcasters, Inc. Podcasting Legal Issues" which seems to claim that no podcast is ever legal without explicit permission from each copyright holder. And this 2+ year old article: "Hopes for legal music podcasts rise" (yeah right, I'm still holding my breath.)

(Oh, also please don't suggest "why don't you just ask your lawyer", because if you're suggesting that, you've never actually spoken to a lawyer. The lawyer's answer will be, "doing X might put you at risk. If you want to be safe, don't.")

Note: I am not asking for technical solutions here. I've been webcasting for seven years, I know how to do it.

Update: So far, nobody has answered my question of, "are there are a bunch of podcasts out there that do what I described in Plan C?"

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47 Responses:

  1. brettpeters says:

    It looks like ASCAP has two different licenses for internet distribution: Non-Interactive 5.0 and Interactive 2.0. After wading through the ASCAP site, it looks like webcasts are non-interactive, and your Plan A is interactive. (http://www.ascap.com/weblicense/) So my guess is that you have one type of license for the webcast, but a different license for pointing to a file or distributing a podcast. Both make a file available for download, which seems to be their big to-do.

    It looks like it'll cost about $900/1 million internet sessions, which seems to be somewhat fuzzy, but you could assume every 20-minute long download is a session.

    But then there's this gem on their Internet FAQ page:

    "Internet transmissions also involve the reproduction and distribution rights in musical works. ASCAP licenses do not authorize the reproduction, or distribution of music or sound recordings, or the public performance of sound recordings (as distinguished from the music contained in the sound recordings)."

    So, you also have to go to the Harry Fox Agency/NMPA to get those licenses, which I can't for the life of me find on their site. You'll probably have to deal directly with them, and they'll want to negotiate the rates before they allow you to distribute.

    And then you have to get one of BMI's licenses, to cover all the non-ASCAP performances. Wow, they sure make this easy, don't they?

    I suspect that posting a list and linking to the band's site and Amazon's MP3 Store / iTunes Music Store (if available) would be simpler than trying to do this the legal way. At least then, you might avoid losing money on the deal. Maybe.

    • boutell says:

      SomaFM has a great why we're not doing what jwz wants to do page. I recommend checking that out.

      My own article how do I legally broadcast copyrighted music on the Internet? is good on streaming, IMHO, but doesn't dig into these podcast issues. But the short answer is that, yes, they are completely different with the podcast being treated as a permanent download and the fees Through The Roof (~30 cents a song a person) unless you negotiate with individual record labels at nauseum.

      • xinit says:

        30 cents per song? There's no way this guy's doing that, and he setup as a podcast...


        • boutell says:

          Reading coverville's post on what their legal strategy is, I recognize the numbers being thrown around. I think I can summarize what they are doing:

          1. They have obtained licenses only for the compositions, not the sound recordings. ASCAP/BMI/SESAC can't license the recording to you. Only the composition.

          2. That's working for them because these are covers by little-known bands grateful to be on the site.

          3. Podcasts = downloads = for keepers = like offering the song on a CD. Legally, they owe a ~ten cent statutory royalty on every saveable copy (which would include podcasting), unless they negotiate something else with the recording artist or whoever they have assigned their rights to. They are getting away with not doing this because see #2. They may or may not be clearing this with the bands. It doesn't meet jwz's criteria because he doesn't want to worry about who is signed or unsigned blah blah blah.

          So in sum Coverville is exploiting a legal window of opportunity to fill a very specific niche: covers of popular bands performed by obscure bands.

          • sc00ter says:

            We ran into this when I worked for a small (very small) public access TV station.

            We could have bands come in and do covers, but we couldn't play the CDs of the popular band doing the same song. It was odd and strangely stupid. This was back in '94-'95

          • xinit says:

            That's confusing to me, as It's not really all obscurity though; there are plenty of brand-names among the performers as well; Sonic Youth, Prince, Residents, Sting, The Police, George Harrison, Ringo, Elvis Costello, Ramones.. just some I was able to find in the show listings at random..

            • boutell says:

              Apparently I didn't dig deep enough. To really be safe doing that without paying soundexchange piles of dough, they would need to cut a deal with the recording label involved.

              I wonder if they put up stuff by well-known performers early and have since moved to more obscure performers to paper over the problem a little.

              My suspicion is that they are ignoring the sound recording license issue entirely. Which will work fine for them until it doesn't.

          • xinit says:

            Is SoundExchange still offering the "alternative" payment scheme revolving around paying a percentage of revenues rather than a per song fee? I think that's how it went, anyhow....

            • sc00ter says:

              That was part of this:


              It's only temporary, so that's good for 2 more months.

              Here's the proposed plan, I'm sure it's changed but I'm not about to go digging for it now:

              "The proposed rate plan would allow the small broadcasters to pay royalties worth 10 percent of their revenues, or 7 percent of their expenses, depending on which is higher, on revenue up to $250,000 a year. For revenues exceeding $250,000 a year, the small webcasters would pay 12 percent of royalties or 7 percent of expenses in royalties."

            • boutell says:

              No, they dumped that, which is why there was so much gnashing of teeth among the Internet radio set last year. However, to keep congress from taking action, they had to compromise and offer a noncommercial broadcaster option. The noncommercial broadcaster can pay a sane rate up to a certain number of broadcast hours. This was done to break up an alliance between churches, etc. and other Internet broadcasters.

        • boutell says:

          Ahem, the ten cent statutory royalty thing applies to a different situation. This area is so bolluxed that even those of us who have put serious time into understanding it get our tongues tied. Let me try again:

          1. They have obtained licenses only for the compositions, not the sound recordings. ASCAP/BMI/SESAC can't license the recording to you. Only the composition.

          2. That's working for them because these are covers by little-known bands grateful to be on the site.

          3. ASCAP and BMI consider podcasts to be roughly equivalent to streaming. This is really handy if you are only worried about the composition license (the lyrics and chords, loosely speaking, which were written by big deal bands who are ASCAP or BMI members).

          4. SoundExchange, on the other hand, considers podcasting to be equal to a download to be "for keeps" to be very expensive. This is where the roughly 30 cents a download comes in. If you're selling a song download for a dollar, this is fine. If you're podcasting it's ruinous.

          The reason why SoundExchange doesn't come into the picture for Coverville is because Coverville is doing something very specific: offering covers of popular bands, performed by obscure bands. Those obscure bands have reached a formal or informal private understanding with Coverville. Or they have no representation affiliated with SoundExchange to check up on things like this.

          • xinit says:

            Further down, "coverbrian" makes a comment about the licensing thing... apparently he is trying to avoid the licensed stuff as much as possible.

  2. xinit says:

    The guy at Coverville has been doing this for about 3 years; playing pretty much nothing but licensed music for a podcast, paying ASCAP and BMI for the privilege.

    Check the bottom of this page:

    • coverbrian says:

      I do try to use as little licensed music as possible, and have gotten permissions from major labels (although getting permission from smaller, independent labels and artists is much easier).

      But much of what has been discussed above is correct; ASCAP, BMI and SESAC will only cover the songwriting portion of the perfromance, not the mechanical rights. If you're not getting explicit (written) permission from the artists and labels, you'll need to use an agency like Harry Fox or SoundExchange.

      Streaming is a good alternative, although there are still some licensing issues that recently came under fire with regard to user sessions and a per-song fee.

      • xinit says:

        Thanks Brian... guess that covers (seriously, pun not intentional) the issue for Coverville and SoundExchange....

      • brettpeters says:

        So, a band that covers another band's song would need ASCAP/BMI/SESAC for the songwriting license/royalties, but they would own the mechanical rights?

        • coverbrian says:

          Yes, the band - or often the label with whom they're signed - would own the mechanical rights.

          • boutell says:

            ... And SoundExchange doesn't grant permission for downloads at all, only streaming (according to their FAQ), so permanent downloads require a deal with the record label. I'm impressed that you've managed to make arrangements with them.

            • coverbrian says:

              Making arrangements with the smaller labels has been easy. They get it. It's a way for non-top-40 bands to get exposure, and if you look at the Amazon.com purchases that come from my site, it confirms that podcasts can sell albums.

  3. assbarn says:

    KEXP in Seattle also has a Song of the Day podcast:


    It's an independent public radio station in Seattle, and they're pretty good about replying to questions by email, so it couldn't hurt to ask them how they pull it off:


    It might be because they have a transmitter, but they often thank the bands and/or labels on their other longer podcasts, so my guess is that they probably get permission for each one. Ugh. And they probably have full-time people dedicated to that sort of thing.

  4. mark242 says:

    Your "Plan B" of setting up a streaming station isn't actually that difficult at all. Getting KPOSI up and running was about an afternoon of getting Icecast to talk to Shoutcast. The service is fairly bulletproof, and runs for months on end.

  5. allartburns says:

    Avi was doing a legal set of downloads back when he put out "The Essence". His site got hacked and all the detail pages are down, but my memory is that he contacted record labels and asked if he could distribute songs on his podcast. Enough agreed that he was able to put out a pretty decent selection of music on a regular basis.

    He's a pretty nice guy, I'm sure if you emailed him he'd give you some pointers.

  6. jayp39 says:

    Have you heard of Grooveshark? They will soon be adding a feature where you can embed any song they have for all to listen to (they're P2P based, so they have several million songs), free and legal (they pay the royalties). For now you would have to link to the song and everyone would have to sign up to listen.

    Since that feature isn't up yet, you can try SeeqPod. A lot of the features on that site don't work well, but it crawls the web for music and lets you stream from the source, so if any song is illegal it's not you violating copyright, it's whatever site is hosting the song.

    • jwz says:

      I am certain they don't have at least 50% of the music I listen to. This is also true of last.fm and everyone else who does this kind of thing. So that's useless because it puts me back in the same old, "I love this song! Oh, but I can't post it" box. The box labelled "fuck it".

  7. eugene_o says:

    In additon to KEXP in Seattle, KCRW (http://www.kcrw.com/podcasts) in LA is doing a "Today's Top Tune" podcast.

    • jwz says:

      It seems certain that they're getting per-song permission, especially since a bunch of those songs are performed live in their studios.

  8. lilmissnever says:

    Here is the quick, short answer:

    Yes, Podcasting songs would be illegal. There is no license for Podcasting. However, the RIAA does no appear to be going after Podcasters. On the other hand, that is no assurance that the RIAA won't decide to go after them in the future, in which case, you will be racking up the legal fees.

    • errorval says:

      The RIAA is indeed going after podcasters (I should know; I've gotten several notices from them over the past year for podcasters we host at Podomatic). However, they're not very technical about it yet. They seem to focus only on the most egregious violations (single-song posts), and they only will request takedown of a few episodes of a show even when all the episodes are clearly infringing.

  9. tjic says:

    (Oh, also please don't suggest "why don't you just ask your lawyer", because if you're suggesting that, you've never actually spoken to a lawyer. The lawyer's answer will be, "doing X might put you at risk. If you want to be safe, don't.")

    OK, I won't suggest that YOU ask your lawyer. But I will note in passing that the copyright lawyer that I use for SmartFlix is first class, takes a strong stand against DRM , restrictive abuses of copyright law, etc., and also doesn't give me answers like that. He gives answers like "This went before the 9th circuit court, and they held that X. The other circuit courts haven't ruled, but there's strong precedent. I think you'd be safe if you did it." Also, he loves high tech stuff, writes a blog, and has written numerous friend-of-the-court briefs for the Supreme Court. The footnote in the current copyright law that lets computer software (in the form of non-installable game DVD-ROMS for consoles) to be rented out is something that he wrote, and got incorporated into the law.

    He's also first class at telling abusive copyright lawyers to shove it when they send a cease-and-desist that's full of BS and vapor.

    It's John T Mitchell at Interaction Law. Tell him I sent you.

  10. allartburns says:

    The Essence was pretty much plan C. Every couple of weeks Avi would release a new 1-2hr "mix tape" of music he liked.

  11. telecart says:

    ..but in the very least, Warren Ellis does what you describe occasionally, reaching many thousands I would imagine, both posting individual songs and mixtapes. He does put a bullshit warning that songs are to be deleted within 24hrs or whatever.

    on the other hand, he's British, so what I just said might not be at all applicable to you, I have no idea, but at any rate it certainly is being done.

    • telecart says:

      Oh, and 106fm local student radio's website is full of a mindboggling amount of podcasts with clearly infringing stuff. But then, they've got a transmitter (though pay no royalties because they're an "educational facility") - - but again, they too are not American, and need not fear the RIAA.

    • elliterati says:

      Warren's posts are almost always unsigned bands, especially on the mixtapes, and he asks bands to send him music to cull from. Easy way to circumvent ASCAP...

  12. joel says:

    The fact that a nightclub owner has to worry about getting in trouble for popularizing music is yet another example of how completely and utterly clueless the music industry is.

    The upside is that watching the music industry fall apart is going to be a lot of fun.

  13. ramoth4 says:

    MP3 blogs do what you're talking about all the time. Check out http://hypem.com

  14. ferrouswheel says:

    DJ's release promo mixes online all the time, which is essentially the same as plan C. Although I've had one label ask me to remove a mix, that was only because I explicit asked for their permission (all the other labels said "yes" but it only took one to say "no" to make the time spent preparing it a waste).

    Since then I don't bother asking, and I haven't gotten in trouble yet. Possibly because the labels know that DJs are the main people that buy music remixes from them. Possibly because I'm too low on their radar to worry about.

    Of course, I'm not in America, but a lot of DJs that do this are.

  15. jwm says:

    Presumably, you've already flicked Warren Ellis an email about this? His 4am mixtapes are effectively like Plan C (albiet with unsigned artists), and he's been putting up links to songs by signed artists on a "seven day evaluation" rubric for a while.

    Admittedly, he's in the U.K. legal jusidiction, but I gather U.K. law is even more restrictive, if anything.

    I think the best you're going to be able to find is how likely the initial salvo is going to be a cease and desist versus a writ. Your existing licencing should could for something, but the RIAA have been writ happy of late. I would think an historical summary of behaviour and cases to date is something a lawyer should be able to help you with, if they're worth anything at all.

  16. srmm says:

    This guy has a plan c podcast, and it's one of the most popular. http://djsteveboyett.blogspot.com/ Maybe he's a good person to ask?