The Download on Podcasts is a weekly feature sponsored by PodcastOne.
Podcasting is generally known as a spoken-word audio category. But there is no technical roadblock to publishing podcasts about music, or purely musical programs that behave like streaming playlists. After all, a podcast is simply a discrete audio file for downloading or streaming. So why has podcasting traditionally concentrated on talk shows?
Music licensing law in the U.S. is the major reason that music podcasts never got a foothold when podcasting was introduced about 10 years ago. Broadcast attorney David Oxenford succinctly explains in an article about this issue: “Royalties paid to SoundExchange and even to ASCAP, BMI and SESAC don’t apply to traditional podcasts meant to be downloaded onto a digital audio recording device like an iPhone or any other smartphone.” There is no automated, statutory licensing process for podcasts, as there is for Internet radio. Today, more than 10 years ago, lack of easy music licensing for podcasters increasingly seems like a legal glitch.
The main reason that podcasts cannot participate in SoundExchange royalty collections, as online radio stations do, is the historic process of downloading shows. Consider the name: Podcasting. Podcasts got their name from the Apple iPod, the first mainstream MP3 player. the technical underpinning of early podcasts required a download of the program before listening. Podcasting grew out of blogging, and was closely tied to RSS distribution, which was not an audio streaming platform.
David Oxenford explains the legal technicality:
“A traditional downloaded podcast involves not the right to public performance of music, but instead the right to the reproduction and distribution of that music. The rights of reproduction and distribution are different from the public performance right, and the permission to make reproductions and distributions are granted by different groups than are the public performance right.”
Downloading amounts to reproduction in the legal realm of digital music licensing. It is not much different, legally, from putting songs on a CD, and marketing the CD.
This legal reality that inhibits musical podcasts doesn’t make as much sense today, when the difference between streaming and downloading is invisible to users in many cases. In the background, where media files move from servers to consumer devices, there is also blurring — think of YouTube or Netflix buffering your video, downloading part of it in advance to ensure an uninterrupted stream performance.
“The distinction between podcasts and streams is already eroding steadily as a consequence of evolving user expectations and UI design,” according to Stephen Hill, founder of the Hearts of Space radio show and corresponding HOS.com subsription service. “Even when music licensing is not an issue, as with original public radio programs on NPR.org and other sites, it is now routine to offer users an on-demand stream as well as a download. Listen now? Listen later.”
If the difficulty of procuring music rights stops music programmers from entering the category, it also arguably prevents music rights-holders from earning revenue in a type of listening that’s growing fast. Jim Griffin, Managing Director of OneHouse who has served as an expert witness in congressional hearings about music licensing, believes categorically that musicians are punished for lack of a licensing framework for podcasts: “SoundExchange could in my opinion glean hundreds of millions for music, bare minimum, with the right podcast licensing platform.”
So, while music programs are scarce in podcasting, they do exist to promote indie music where permissions can be directly secured, in the same way that MP3 blogs promote and distribute new music. Musicians can circumvent an endless series of direct requests and permissions by publishing “podsafe” tracks using a Creative Commons license. Several repositories for podsafe music are available to podcasters. One organization dedicated to bridging the music licensing moat is the Association of Music Podcasting, whose resources assist publishers, creators, and listeners.
Congress thought that digital streaming would be just like radio, specifically a promotional tool which was highly effective at increasing purchases. They were wrong. Digital streaming’s net effect is to *replace* purchases. This combined with rampant ad-served piracy has decimated the music industry, particularly the middle class of musicians. So yes, Congress does need to make all types of licensing easier, including podcast use. But it also needs to increase rates to reflect the fact that a captured (or nearly free) stream or podcast *replaces* a download. Just because a company’s business model requires them to give away their product for next to nothing should not obligate musicians to subsidize these businesses with their art. And while they’re at it, Congress needs to remove the blanket safe harbor protections for services that repeatedly and deliberately profit by serving ads on “shared” pirated material. .