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What is it?

Think of podcasting as TiVo for radio. Just as TiVo allows a viewer to watch his favorite television program or movie when he has the time, podcasting automatically downloads audio files to a user's computer for listening at the user's convenience. A podcast is an audio file archived on the Internet in such a way that it can be automatically accessed by a personal computer, downloaded and transferred to a portable MP3 player, such as an iPod. Podcasts are usually in a talk show format but can be music or audio clips from television programs, movies, chat groups, daily horoscopes or lectures. Most podcasts are freely available on the Internet and do not contain commercials or advertisements.

Podcasts are technologically unlike webcasting or streaming. Webcasting is an Internet stream of a live or online simulcast of a broadcast signal and a podcast is the downloading of a non-live audio program. Streaming is one technology for downloading and accessing a stream of electronic information at the same time. Podcasting is the downloading of a single complete audio file to be listened to at a later time. Because of these differences, copyright licensing for podcasting is different than the copyright regimes for webcasting and streaming. Indeed, copyright law has yet to catch up with the technology of podcasting.

Who can podcast?

Anyone can be a podcaster who has bandwidth, a website, a computer with a microphone and necessary software. Podcasting software and podcasts are widely available on the Internet. Such sites include: www.ipodder.net, www.podcaster.net, www.podcasts.org, www.ipodder.org, www.podfeeder.com and www.audible.com. Podcasting is based on open standards so podcasts can be downloaded by any type of computer and played by any MP3 player or computer audio program that recognizes Real Simple Syndication (RSS) feeds or MP3 files.

Radio stations and content providers are taking notice of podcasting and making their own content available on the Internet. Within the last few months, NPR, BBC and a number of local radio stations have started to package their on-air programming into podcasts. Traditional broadcasters and programmers are beginning to realize that providing "a podcast a day" can draw listeners to their websites and introduce listeners to new music. Copyright law basics.

Copyright law protects musical and spoken compositions, or "works"; the performance of a work preserved in a sound recording; and the sound recording itself. Podcasting implicates these in three ways: the performance of a work; the playing of a sound recording of a performance; and the reproduction of a sound recording by incorporating it into a podcast. The law is well-settled only as to the first of these.

• Musical works. Performance rights organizations (ASCAP, BMI and SESAC) handle copyright licenses for the performance of musical works, including their performance in a podcast. Separate licenses are necessary from each performance rights organization because each company represents different publishers of composers' musical works.

• Sound recordings. Copyright licenses for the playing (or "performance") of sound recordings historically have been handled directly with the owners of the works, usually record companies. (Over-the-air broadcasters are not required to obtain copyright licenses for playing sound recordings. They must, however, hold licenses for playing the underlying musical works.)

  Under amendments to the Copyright Act in 1995 and 1999, a statutory license scheme was enacted for the digital transmission of musical works and sound recordings. However, the statutory licenses reflect the technology of the times. The 1995 legislation covered downloadable music files, such as the commercial sale from a web site of an MP3 file. The 1999 act reached webcasting and streaming, both noninteractive activities that involve the transmission of a sound recording, but not the distribution of a reproduction of it.

• Reproduction. By contrast to webcasting, a podcast may include a reproduction of a sound recording. Podcasting is an interactive activity. It results in the transmission of a sound recording which is fixed and is accessible on demand by the user. The reproduction requires clearances or licenses - for the sound recording, and for the musical work. Although the performance rights societies offer licenses to cover the musical works in a podcast, no uniform or industry-wide licensing scheme has developed yet to cover the sound recording.

  This leaves the podcaster with three choices: to attempt to obtain licenses from the record companies; to limit podcasts to sound recordings not subject to copyright protection (generally, U.S. recordings pressed before February 15, 1972 [careful: a CD reissue of a pre-1972 recording is a new, protected, sound recording]); or to eliminate sound recordings altogether from podcasts.

Yes. The owners of copyrights in musical works and sound recordings are entitled to be compensated for the performance and reproduction elements of podcasting. However, the challenge to meeting copyright obligations is that the law lags the technology.

What if I get caught without a license?

The performance rights organizations, RIAA, and others monitor the Internet for websites with music. They may begin to do the same with podcasters. If your podcast is identified, they may locate you and request proof of your licensing. It is in your best interests to cooperate with the organizations. If you do not have a license, they will work with you to get a license. If you fail to respond to the organizations, they are likely to send you a cease and desist letter demanding removal of the infringing material from your podcast. If you do not cooperate voluntarily, they may sue you in court. Remember that the cost of a lawsuit will far exceed the cost of a license. If you are caught, remove the infringing content and get licensed. If you do not remove the infringing content, the fines for copyright infringement may be multiplied. But my podcast is only talk, no music.

If a broadcast station conducts a live interview on-air or a podcaster records an interview or discussion group for posting as a podcast, the station or podcaster should make sure to receive permission from the guest to convert the interview to a podcast. Conducting an on-air or in-person interview does not necessarily give permission to convert the interview to a podcast. A release is a short legal document that waives a person's right of privacy (the right to be left alone) or right of publicity (the right to control how one's image, voice or persona is used to sell things). Failure to obtain a person's permission or a release to podcast an interview could be a violation of his or her publicity and performance rights.

It is also important for stations to review their programming contracts to determine if podcasting is a right that was included in their syndication agreement. Many syndication agreements give only broadcast rights, and reserve all other rights. This means that a station may need to acquire an additional license from the syndicator in order to convert its on-air broadcasts to podcasts. Future developments.

Today podcasts are free to download, may be commercial-free, and are unregulated. In the future, at the risk of turning away listeners, podcasters may add commercials or charge fees in order to pay for bandwith or copyright licenses.

To date, there has been little copyright enforcement by the performance rights organizations over podcasting. As the popularity of podcasting increases, however, it is fair to assume the performance rights organizations and the record companies (or their industry arm, the Recording Industry Association of America, "RIAA") will more actively enforce their copyrights. This has been the case with file-swapping programs. Initially there was little enforcement, but that changed once the popularity of such programs as Napster and Kazaa increased.
Improvements in podcasting software will increase audio quality. With the increasing popularity of podcasting, more sophisticated tools and software can be expected to be released. This will make it easier to download higher quality podcasts and perhaps attract greater attention from the performance rights organizations.

Because podcasting is an Internet rather than a broadcast service, it is not regulated by the FCC. This means that no license is required and that podcasts may contain content that is uncensored for language or subject matter. Future podcasts may be required or strongly encouraged to carry rating information or warnings on RSS feeds to alert listeners that the podcast content exceeds certain thresholds. It is likely that, eventually, the FCC or the courts will be called upon to determine what broadcasting rules, if any, apply to podcasting.

In time, the law will catch up with technology, and podcasters will have clearer guidance on copyright licensing requirements. For now, the best course of action is to monitor copyright developments and to take affirmative steps to comply.

Carly Didden is an associate, Communications Group at Garvey Schubert Barer in its Washington D.C. office. She can be reached at 202-965-7880, or cdidden@gsblaw.com. She would like to thank John Crigler and John Wells King, owners with the firm, for their expertise and assistance. The information presented here is intended solely for informational purposes and is of a general nature that cannot be regarded as legal advice. Please consult an attorney if you have questions about the application of copyright law to podcasting.

New technologies challenge established legal precepts, and podcasting is no exception. This was the topic of a CBI memorandum that R.A.I.N. reported in its May 5, 2005, edition. The report generated feedback. Attorneys David Oxenford and Cynthia Greer questioned whether a podcast involves a public performance of a musical composition. SWNetwork's Randall Krause argues that ASCAP and BMI should have no jurisdiction over podcasting.

These are interesting commentaries on legal theory, but they do not guide the podcaster who wants answers today. The Copyright Act says to "perform" a composition means to play it "either directly or by means of any device or process." Thus, the transmission of radio waves capable of being converted into sounds is a performance by means of a device or process. Similarly, the transmission across the internet of bits capable of being converted into sounds can be said to be a performance by means of a device or process.

Unfortunately, the Harry Fox Agency's New Media Application Form does not include "podcasting" in its checklist of the type of media to be licensed. For now, the lack of an industry-wide solution makes difficult a podcaster's ability to comply with rights licensing.

Industry interests and experts will continue to express their differing views and positions at the edge of technology. The practical fact is that ASCAP and BMI have staked their claims to performance royalties arising from podcasts. Each offers a podcasting license. Those who choose to podcast without obtaining a license do so at their peril.

John Wells King is an owner, and Carly Didden is an associate, Communications Group at Garvey Schubert Barer in its Washington D.C. office. They can be reached at 202-965-7880, or jking@gsblaw.com and cdidden@gsblaw.com. The information presented here is intended solely for informational purposes and is of a general nature that cannot be regarded as legal advice. Please consult an attorney if you have questions about the application of copyright law to podcasting.

-CBI