Podcasts and music:

Podcast shows often begin and end with music recordings. I prefer classical music, but I enjoy the off-beat music clips I hear on podcasts. I can’t help wondering, though, how the podcasters “get away with it.” In fact, I understand from a casual comment on a “PK and J” show that podcasters are running a bit scared on this issue. PK and J mused about software they could use to remove musical “bookends” from their shows, to placate the FCC or the RIAA. Not that they want to. They complained that it wasn’t fair, that by playing this music they were helping the artists sell more copies, and that they had a right to play clips of such music.

They’re mostly right, but copyright law is BROKEN so they must prepare to survive the consequences, or to be very very brave.

First, sensible surveys and analyses seem to back up their contention that by making free copies of other people’s music, they are increasing those musicians’ sales. But the big music producers refuse to acknowledge such surveys and – so far – have persuaded congress and the courts otherwise.

Second, there IS a legal copyright exception for “fair use”, but I think podcasters do not understand “fair use” and are not using it when they play partial clips, especially when they play partial clips without commenting on them, and without telling us what they are.

Third, when the RIAA comes after them, their defense rights – summed up by Lawrence Lessig – are that they will definitely be allowed to hire an (expensive) lawyer. So they REALLY need to think about NOT playing other people’s music in their podcasts without permission.

Now in case you’re wondering, on old-fashioned radio we play other people’s music all the time. In theory, the music producers get paid for this. Radio stations pay the RIAA for playing rights. The music producers survey all radio stations occasionally, and base their payments to musicians on these survey samples. This is an antiquated and dumb way to try to pay everyone, and in the age of computers it could be done much better, but basically:

• Play music on radio – producer gets paid (maybe).
• Play music on Podcast – producer does not get paid (as far as I know).

I happen to produce a radio music show, but that doesn't mean I’m biased against the musical podcasters. In fact I envy them their right to play Mozart’s delightful scatological canons. I can’t, because my radio station FEARS the FCC.

UPDATE:Here's how blogs avoid using commerically-controlled music.