Updated: Wil Wheaton writes us in agreement that "$20 a year is
entirely reasonable, and it doesn't make it cost-prohibitive for
hobbyists to pay the fee." Of course, that still raises the question of
how to handle other rights that may apply and could be more costly —
those not administered by ASCAP. And I agree with Wil: podcasting could
be a fantastic promotional tool for music that could be crippled by
overzealous license fees from music labels.
Boing Boing certainly seems to have an axe to grind with ASCAP — after Wil Wheaton blasted ASCAP
for adding podcasting to their interactive license (and later tempered
his reaction, which didn't seem written for publication), Cory Doctorow
last week pointed to a campaign targeting ASCAP for "enforcing" license fees for Happy Birthday. Seems like the target for ire there is mega-media company Time Warner that owns the copyright, not ASCAP, or the copyright law that would allow the renewal.
I'm all for discussion, but let's get the facts straight first. Going
after ASCAP isn't going after the "corporate music industry" — it's
after 200,000 members who are song writers, composers, lyricists and
only performing rights group in the US controlled by its members. That
includes everyone from Dr. Dre to classical composer Jennifer Higdon.
ASCAP isn't "hunting down" podcasters, either. I dug up some info on
how ASCAP is handling licensing. (Apologize for the lag with the
original post, but this took some time.) The inclusion of podcasting in
ASCAP's latest interactive licensing agreement is an acknowledgment
that the medium could take off and make money — and that's good news.
It's mentioned in license agreements that include not only podcasting
but technology like Flash files and Internet jukeboxes, too. (read more)
ASCAP Asst. Vice President for New Media & Technology Matt
DeFillipis tells CDM: "Podcasting was not a deliberate inclusion in
ASCAP's current license agreements. Rather, it is simply one of
the many ways music — and ASCAP's members' music in particular — may
be transmitted to the public, which the US Copyright Law defines as a
public performance for which authorization is required from copyright
owners or their licensing organization."
So, will ASCAP be knocking on your door wanting exorbitant fees for
your non-commercial blog? Not at all. You'll have to go to ASCAP to get
a licensing agreement, and if you qualify for a special individual
license, the cost could be as low as $20 a year, says DeFilippis. Not
every site will qualify, however: "Users who wish to determine if they
qualify for the Individuals
agreement can write to ASCAP at firstname.lastname@example.org; they should
include a description of their music uses and a link to the place from
which they make such music available." Other licenses may apply
depending on your site like the web licenses; you'll have to check.
$20 a year and you're fully legal? Sounds terrific. Unfortunately, it's
not quite that simple, says DeFilippis. Internet broadcasting may still
require multiple rights. And yes, this where the RIAA (represented the
label) and Harry Fox Agency could come in.
And here's the case where Doctorow and Wheaton are absolutely right —
complex, costly licensing could be an obstacle to promoting music
online. That could be why LA-area public radio station KCRW has chosen
not to distribute music with their new podcasts.
There is a definite sense among podcasters, even some of the big radio
outlets that are getting into the game, that this is an emerging field
no one has quite figured out yet.
Whether this encourages copyright owners to seek a Creative Commons license
to promote their work by licensing it more freely or not, it should be
up to musicians — up to the copyright owners — to determine what
licensing and ownership is best for them. In the meantime, though,
let's spend energy really finding out how the law works and what will
make the most sense for song creators, not just randomly bashing ASCAP
without the facts. A licensing agency that represents copyright owners
could be the perfect part of a solution for everyone involved.