Decius wrote:
] Did you read my posts? I agree with you totally in principal
] and this is what I said initially, but it turns out ASCAP is
] claiming that ANY digital transmission of a sound recording is
] a public performance regardless of whether the transmission is
] actually played. They are collecting from online music stores
] for their SALES.

A very brief discussion I had with my copyright law professor today seemed to indicate the opposite, however it is open to debate. We didn't talk long about it, I'll bring it back up next week.

Hmm.. I'm going to have to sit down with sec 106 and 114 and think about this. In the meantime, a rant with where I'd think it stands right now.

I had been under the impression that the reason the online music stores were paying PRO royalties was due to the fact they had the preview features available, which are a stream and not a download, hence performance (and not covered by in-store play exclusions). That doesn't appear correct. I am completely unaware of the details of the stores' agreements with the PROs. Its likely that the ambiguity was left in place rather then battled out due to the stores desiring not to stir the shit any further then necessary, and just get their show on the road.

They can claim whatever they want, and the stores can play along, but that does not mean its valid. In the case of podcasting, it got its name because the intention was to create radio style programs for later playback on iPods. This does not imply public performance in any way, quite the contrary. The "cast" part of the name does imply broadcast, but I can see ways to counter that. MP3 being used Shoutcast style can be both a stream and a download, but the intent with podcast is different. Although it could also be claimed that the content qualifies as a performance simply because its possible can be streamed. Do we need a file format where playback can't take place until the last part of the file has been downloaded? We probably already have one... However the law doesn't give a shit about anything I said in this paragraph..

Sec 106(6): in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

At least the liability isn't on the user end. Its clearly the producer. The source of the digital stream is what strikes sec 106(6). If that work transfered contains a protected work, the podcast's creator is the point of infringement and would be liable.

The crux may is the "to preform ... by means of". That implies the digital transfer itself is the public part, not the actual performance. The actual performance is likely private, but the transfer is digital. Sec 114 tosses in some language about "subscriptions" that might apply to RSS feeds, which complicates matters further. I believe that a happy side effect of this all is that if you buy music from iTunes (or another store that pays the PROs), you can preform it in situations where you would normally need PRO licenses, but don't have them. Like in a bar you can't play CDs without performance coverage, but you can play the radio because it got the coverage via the radio station's license(s). The courts ruled (can't remember what case) that they can't hit you up twice. It might apply in a number of new situations. If the correct problem is posed, and podcasting may be it, some new case law is in order.

When it comes to licensing specifics having to do with different technology usage, I think intended usage of the technology should^Wwill be key. RealMedia style streaming does not facilitate downloads, even though its possible to make it do so, but its method is protected from circumvention by the DMCA. Shoutcast can do either. Podcast aims to be download. One way or another, these different variations and the licensing approach that go along with them should be boiled out in a far more rational way. The fire that heats the boiling water is the differences of the application of the technology. Clarification would help all parties.

In the end, being a mechanical copy isn't what you really want if easy clearing of rights is the goal anyway. In terms of podcasts, usage of works that qualifies as fair use should be the goal of podcaster. If the goal is to facilitate a way to download a track that's three songs interspersed by some idiot talking between them, I'm not interested. Already got that, can time shift it if I want to. If its being able to play a 20-30 second clip of a song and recommend a band, then its worth fighting for. Criticism, comment, and news reporting are covered under s107 fair use, usage such as Wheaton was concerned about is already clearly covered. If you play a clip of a band while reviewing them or reporting a new release, you are covered. Just don't use a very large portion of the work. Most podcasting I've heard is NPR'ish, and I like that. Downloads that amount to traditional radio are not all that desirable. I'd rather just come up with methods to share playlists, in sync, that subvert all this shit. Let the user worry about how the rights for the mechanical and performance on their end are worked out; Let the programmers program, both the content and the code.

... the beat goes on. Problem is, as usual, its a beatdown.

I think the real question is this.. If Shakespeare existed in the Copyright environment of today, woul the great bard have wanted to kill all the lawyers more, or less. :)

RE: Boing Boing: Wil Wheaton: So, ASCAP to *license* podcasts? Readers respond.