Published by Randall Krause on Wednesday, July 13, 2005 [Permalink] [Return to Top]
Re-Examining the Legal Implications of Podcasting
(The following editorial was published in the WinAmp discussion forums on July 13, 2005)
Public performance and public display are well defined in copyright law, and it can be seen that neither of these exclusive rights encompases Podcasting. ASCAP has recently removed the term "pod-casting" from its experimental license agreements, quite likely for this very reason.
The specific language of the terms of the ASCAP Experimental License Agreements (interactive 5.0 and non-interactive 2.0) deny the licensee from enabling or incurring or even granting the making of reproductions and downloads of musical works onto a hard drive or other media device through the same service which thus specifically disqualifies a Podcast.
Podcasting unambiguously involves a reproduction of a musical work and of a sound recording. Neither of these rights (including the master use rights of the recorded work) are under the control nor the jurisdiction of ASCAP and BMI (notwithstanding the fact that ASCAP and BMI have nonetheless adopted the position that digital downloads are a public performance).
Furthermore, there is hitherto no case law or binding legal doctrine which can assert or otherwise refute that digital downloads from a public server do exploit music copyrights in the fashion of a public performance.
In examination of "Section 104 Report on the Digital Millennium Copyright Act" (Issued by the U.S. Copyright Office on August 29, 2001)
"Though we recognize that it is an unsettled point of law that is subject to debate, we do not endorse the proposition that a digital download constitutes a public performance even when no contemporaneous performance takes place. If a court were to find that such a download can be considered a public performance within the language of the Copyright Act, we believe that the arguments concerning fair use and the making of buffer copies are applicable to this performance issue as well. It is our view that no liability should result from a technical "performance" that takes place in the course of a download."
The Report by the Copyright Office enforces the position that any performance in the manner of a music download is purely incidental to the music download, and the performance thereof is as of yet not a statutory provision.
While it is true that the Webcasting provisions of the DMCA describe transmissions from a non-subscription Internet service to be received by the public, there is absolutely no allowance for the undertaking of any reproduction of a sound recording by the recipient (other then consequential ephemeral phonorecord copies as referenced therein) in order to necessarily accomplish the performance. Nonetheless, this is how a Podcast is specifically designed to operate. The Podcast, by virtue of its operation if applied to the statutory definition of a Webcast, is prohibited.
In conclusion,
One should be ever mindful -- not ever trustful -- of what an attorney says. An attorney may provide you with useful information, but his lack of experience or failure to exercise due diligence doesn't absolve you of your obligations under copyright law. The infringement and the ensuing liability still applies, it simply means you have someone to argue in your favor and hopefully that will at least delay or lessen the consequences.
Randall E. Krause
Executive Director
Small Webcaster Community Initiative
info@smallwebcaster.org
