MESSAGE
| DATE | 2005-08-18 |
| FROM | Ruben Safir
|
| SUBJECT | Subject: [NYLXS - HANGOUT] [Fwd: SuitWatch - August 18]Note on Web Casting below
|
-----Forwarded Message-----
> From: Linux Journal News Notes
> To: suitwatch-at-ssc.com
> Subject: SuitWatch - August 18
> Date: Wed, 17 Aug 2005 17:33:14 -0600
>
>
> SuitWatch--August 18
>
> Views on Linux in Business
>
> --by Doc Searls, Senior Editor of Linux Journal
> _________________________________________________________________
>
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> _________________________________________________________________
>
> Open the Pod Bay Doors
>
> I'm drafting this just before driving from Santa Barbara to San
> Francisco to attend LinuxWorld Expo. I'm preparing to ease my trip
> with a collection of podcasts, chief among which will be the latest
> edition of The Roadhouse:
> http://www.roadhousepodcast.com/--"the finest blues you've never
> heard"--by fellow Linux Journal writer Tony Steidler-Dennison.
>
> The Roadhouse features "podsafe" or "non-RIAA" music, mostly offered
> through Creative Commons:
> http://creativecommons.org/ licenses. Playing podsafe music is easy
> for the podcaster and good for the artist, which is why it feeds a
> fecund and rapidly growing independent music ecology.
>
> But ignoring the huge portfolio of conventionally copyrighted (RIAA):
> http://www.riaa.com music is nearly impossible, thanks to the
> countless tunes that have been running in our heads since we were
> babies. Plenty of podcasters, me included:
> http://doc.searls.com/, want to be able to play chunks of this
> music--even to help sell it. How can we do that on a podcast? Better
> yet, how can podcasting participate in what Lawrence Lessig calls
> "remix culture":
> http://en.wikipedia.org/wiki/Remix_culture, which he says has been the
> very nature of culture itself since our ancestors painted pictures of
> bison on cave walls.
>
> Turns out I'm not the only one asking this question.
>
> A few days ago, "Storm clouds gather over podcasting":
> http://www.usatoday.com/money/media/2005-08-03-podcasting-usat_x.htm,
> by Michelle Kessier, appeared in USA Today. It's about the podcasting
> travails of KEXP:
> http://www.kexp.org and KCRW:
> http://kcrw.org/, two of the best noncommercial radio stations in the
> country. In addition to radiating over the airwaves, both:
> http://kexp-mp3-2.cac.washington.edu:8000/ also:
> http://www.kcrw.com/grid/ stream on the Web and syndicate:
> http://kexp.org/podcasting.asp podcasts.
>
> Here are the key paragraphs:
>
> A podcast is a digital recording of a radio-style audio program
> that can be downloaded from the Internet and played on a digital
> music player. Many podcasters think the technology could
> revolutionize radio as TiVo did television.
>
> But record labels worry that listeners will pirate the songs
> contained in the downloaded radio shows. The result: yet another
> Napster-like standoff over piracy and music rights.
>
> Podcasting is a great way for KEXP to reach thousands of new
> listeners, especially those outside of Seattle, Richards says. But
> the station can't podcast programs such as John in the Morning -
> Richards' variety mix of independent and mainstream music - because
> record companies haven't provided an easy, affordable way for
> podcasters to license songs. That's why most podcasts today are
> talk radio.
>
> In fact, KCRW's Morning Becomes Eclectic show:
> http://kcrw.org/show/mb, one of the best music programs on radio, is
> selectively offered for podcast:
> http://www.kcrw.org/podcast/ by KCRW. From what I gather, only the
> podsafe ones pass through. (I just checked with Apple's iTunes podcast
> directory, and the list of available shows from the Morning Becomes
> Eclectic catalog is down to just one item, from June 28th of this
> year. Last time I looked there were many more.)
>
> Since podcasts are recordings, they can be played at any time.
> Listeners can pause, fast-forward or rewind them. And since
> podcasts are posted online, listeners can download programs from
> radio stations and independent broadcasters from all over the
> world.
>
> The podcasts can also be hacked and pirated. An enterprising
> listener could pull songs out of a podcast and turn them into music
> files or CDs.
>
> That's why many record companies say the technology is promising
> but problematic. For example, OK Go and several other emerging
> bands with EMI have their own podcasts. But EMI is not ready to
> approve a blanket podcasting license. "Podcasting is potentially
> very exciting," says Executive Vice President Adam Klein. But the
> company needs contracts "that are responsible to everybody," he
> says.
>
> Ruth Seymour, general manager at influential Los Angeles public
> radio station KCRW, worries that those contracts will take years to
> be worked out. That would keep podcasting from reaching its
> potential, she says.
>
> Several of KCRW's programs - notably a well-regarded new-music show
> called Morning Becomes Eclectic- would be perfect for podcasting,
> Seymour says. Many already have fans worldwide thanks to an early
> form of digital radio called streaming media.
>
> Streaming media is different from podcasting because it's not a
> recording, which makes it harder to pirate. A stream is essentially
> a broadcast that travels over the Internet instead of the airwaves.
>
> Record and radio companies have struck a blanket licensing
> agreement for streaming based on traditional radio licenses. No
> such agreement exists for podcasting. So if Seymour wanted to
> podcast Morning Becomes Eclectic, she would have to sign individual
> contracts with each record company.
>
> "That's an impossible process," says digital music analyst Phil
> Leigh at Inside Digital Media.
>
> For now, KCRW is podcasting only talk programs, live performances
> and independent bands. "I really want to podcast (major label)
> music!" Seymour says. "It's where the future is ... (but) I don't
> want a cease-and-desist order."
>
> There are buildings full of lawyers in Los Angeles that "clear rights"
> for a living. Without them, movies would be much easier and cheaper to
> make and distribute. But, thanks to Hollywood's native regulatory
> regime, the movie Tarnation:
> http://imdb.com/title/tt0390538/, which wowed the 2004 Cannes Film
> Festival and cost $218 to produce, faced a bill upwards of $400,000 to
> "clear rights" for the video clips used in the movie.
>
> Ordinary, over-the-air radio, including Sirius and XM satellite radio,
> doesn't have to deal with that kind of hassle. By terms worked out
> when radio was young, stations only have to pay composers. They do
> this through ASCAP, SESAC and BMI. That's it.
>
> Podcasting is a new breed of service. As a music podcasting pioneer,
> Tony has to blaze trails through a copyright jungle. He explains:
>
> My concern with securing permissions is that I really have to do it
> in a black box. All the rights--mechanical, performance,
> composition, etc.--are negotiable details in a contract between the
> artists and the labels. Obviously, I'm not privy to the details of
> those contracts, so I'm always a bit nervous about whether the
> person granting the rights actually has to power to do so.
>
> I've asked for and been granted permissions by several independent
> labels: Black and Tan, Alligator, TopCat, and Blue Sunday
> Entertainment. In every case, it's gone through the president of
> the company, though the discussion may have started with a radio
> rep.
>
> In fact, I'm currently hammering on Tone-Cool (Fabulous
> Thunderbirds, Hubert Sumlin, Susan Tedeschi, Double Trouble, Taj
> Mahal, Rod Piazza and the Mighty Flyers) President Richard
> Rosenblatt, but he's been a little less than responsive. I've also
> gotten e-mail from them explicitly granting permissions to play the
> music of specific artists in the podcast. And, I make it clear that
> for the format of my show, I'm actually tighter than the streaming
> guidelines of the DMCA. It might be a thin approach, but I figure
> if someone comes after me, I have some deeper pockets to fall back
> on--the label itself as represented by the president, and tighter
> controls than Congress has required for similar technology.
>
> Two things to note here. First, Tony is dealing only with independent
> labels, not with the giant labels--Sony and Warner--that comprise the
> RIAA. Dealing with the big copyright holders poses a challenge beyond
> the endurance of all but the entertainment lawyers who thrive on this
> kind of thing and the fees they bring. Second, there's this business
> about "the streaming guidelines of the DMCA".
>
> "Guidelines" are an understatement. To Web cast legally, one must:
>
> 1. Register with the Copyright Office, filing a Notice of Use of Sound
> Recordings Under Statutory License. This "compulsory license" costs
> $20.
>
> 2. Not provide an "interactive service" that provides listeners a
> choice of songs played.
>
> 3. Not allow call-in requests for music, unless the Webcaster chooses
> among multiple requests, so the caller has no direct influence.
>
> 4. Play no more than three selections from any album or CD in a three
> hour period.
>
> 5. Play no more than three selections from any one artist in a three
> hour period.
>
> 6. Play no more than three of the two items above consecutively.
>
> 7. Not publish advance program schedules that allow listeners to know
> exactly when any particular selection will be played.
>
> 8. Identify the song title, the album or CD, the artist and
> information encoded by the copyright owner identifying related
> information, in text.
>
> 9. Not broadcast bootlegged or pirated copies of recordings.
>
> 10. Not associate music with visual images that suggest a connection
> between the music and the images.
>
> 11. Play music from a site that is principally concerned with music,
> rather than product sales.
>
> 12. Cooperate with industry "anti-piracy" efforts.
>
> 13. Pay royalties:
> http://www.soundexchange.com/rates.html on a per-song, per-listener
> basis.
>
> 14. Keep track of and report on all the above.
>
> Accounting information and royalties go to SoundExchange:
> http://www.soundexchange.com/, the recording industry's instrument of
> administration, collections and other fun stuff.
>
> There are different rates if you qualify as a "commercial
> Webcaster/broadcast simulcaster", "small commercial
> Webcaster/broadcast simulcaster", "noncommercial
> Webcaster/simulcaster", "noncommercial educational entity" or "NPR/CPB
> member station".
>
> This regulatory morass all springs from the belly of the Digital
> Millennium Copyright Act (DMCA), which was passed by Congress in 1998,
> but left settlement of sticky Webcasting copyright issues up to
> opposing parties to solve among themselves, through a Copyright
> Arbitration Royalty Panel (with the four words arranged in that order
> to avoid the spelling derived when the middle two are reversed), or
> CARP.
>
> The only Webcasters not clobbered by the "agreement", which nobody on
> the Webcasting side liked in the least, are the public radio stations.
>
> As the Copyright Office of the Library of Congress put it in
> "Determination of Reasonable Rates and Terms for the Digital
> Performance of Sound Recordings and Ephemeral Recordings; Final Rule":
> http://www.copyright.gov/fedreg/2002/67fr45239.html, entered into the
> Federal Register on July 8, 2002, "...NPR reached a private settlement
> with the Copyright Owners..."
>
> In effect, that allows KCRW and KEXP to simulcast on the Web. In other
> words, as bad as the situation may be for them, they are in a
> privileged Webcasting caste. The USA Today piece doesn't say that. Nor
> does it bring up this little item I just found near the bottom of
> SoundExchange's rates page:
>
> National Public Radio ("NPR") member stations and public stations
> that are qualified to receive funding from the Corporation for
> Public Broadcasting ("CPB") may be covered by a license agreement
> entered into between NPR/CPB and SoundExchange® that covers
> transmissions made between October 28, 1998 and December 31, 2004.
> No private license agreement has yet been entered into between
> NPR/CPB and SoundExchange for the 2005 license period. For further
> information, public radio stations should contact Denise Leary, NPR
> Deputy General Counsel Programming and Senior Legal Counsel at
> dleary-at-npr.org.
>
> Note the word "may" in the first sentence.
>
> Looks like the RIAA and SoundExchange are looking to get some fresh
> bucks out of the public stations as well.
>
> In any case, commercial stations have it far worse. One sign of this
> situation is the disappearance of KPIG:
> http://lists.ssc.com/pipermail/suitwatch/2004-September/000074.html
> from the Web after the Determination of Rates was made. KPIG:
> http://kpig.com/ was the first commercial radio station to simulcast
> on the Web and one of the best by far. Today, KPIG is available only
> by subscription over Real's and AOL's closed and private systems. It's
> off the public Internet.
>
> Between the last paragraph and this one, I drove up to LinuxWorld and
> back, listening to dozens of podcasts along the way, including many on
> the only radio station in the country that plays an all-podcast
> format, Clear Channel's KYOU/1550am in San Francisco. KYOU, the
> licensed call letters are KYCY, has a transmitter alongside Highway
> 101 in Belmont, California, and a signal pointed northwest, to the
> central and northern Bay Area. The signal has a null or a dent in the
> coverage, toward the South Bay. It's a third-tier signal in a top-five
> market and is good for testing out new formats. The jury is way out on
> this one, but I want to give the station programmers kudos for
> reaching out to myself and others for guidance. They need it. So do we
> all.
>
> I also was intercepted by phone at a Starbucks by Steve Gillmor (on
> whose Gillmor Gang podcasts I serve), who argued with me about many of
> the subjects in this piece. That became a surprisingly listenable
> podcast you can find here:
> http://gillmordaily.podshow.com/?p=8. It was relatively easy for the
> recording industry to strangle Webcasting in the cradle. I covered the
> crime extensively in Linux Journal and anthologized my series of
> reports in my SuitWatch from last September, which can be found here:
> http://lists.ssc.com/pipermail/suitwatch/2004-September/000074.html.
> If you're interested in background, there's a rich trove of background
> materials there.
>
> At best there were a few thousand Internet radio stations at the time
> the DMCA finished shutting many of them down. The ones that survive
> include some real gems. Bill Goldsmith's Radio Paradise is at the top
> of my personal list. Bill was highly involved in the CARP negotiations
> from the Webcasters' side, and he was the hacker-in-chief for KPIG
> during the whole time it lived out on the open Net.
>
> I've been wondering if podcasting's relative strength will make a
> difference this time around. Last September 28, I ran a piece called
> "DIY Radio with PODcasting" on IT Garage (see Resources). Among other
> things, I wrote, "But now most of my radio listening is to what Adam
> Curry and others are starting to call podcasts. That last link
> currently brings up 24 results on Google. A year from now, it will
> pull up hundreds of thousands or perhaps even millions."
>
> Millions it is. That search today brings back 18,600,000 results. If I
> were the RIAA, I'd want to take advantage of those kinds of numbers,
> not fight them.
>
> So, what's the way to bet? I thought Bill Goldsmith would be a good
> one to ask. Here's an excerpt from a brief e-mail exchange we had
> yesterday:
>
> DS: Does Radio Paradise adhere to all those Webcasting rules regarding
> number of artists from an album in a 3-hour period, not providing
> interactivity, etc.? If so, how is that going? Is it as big a PITA as
> it seems?
>
> BG: Actually, it's not that much of a pain. My vision for Radio
> Paradise includes a lot of variety--so the DMCA restrictions on the
> number of songs by the same artist or from the same album in a given
> period of programming is actually in excess of what we would
> ordinarily do. As for interactivity, I see radio as a creative
> medium--with the creator being the DJ. I can see the value in and
> attraction of services that allow the listener to customize their
> experience, but that's not what we're about.
>
> DS: Is there any hope that the RIAA will be less awful to podcasters
> than it was to Webcasters during the CARP process?
>
> BG: I would expect them to be even more rigid and less flexible toward
> podcasters, since inherent in open-format podcasting--that is,
> podcasts that will play anywhere without DRM restrictions--is the
> downloading to computers or devices of complete audio files of the
> podcast content, which in the case of a music podcast can be
> relatively easily separated into individual songs.
>
> Do I personally think that sales of CDs or high-quality purchased
> downloads would suffer if stations like RP were allowed to podcast
> copyrighted material? No way. I agree with a substantial group of
> artists and small labels who feel that exposure is exposure and that
> the distribution of 128kbps-grade MP3 files of their music via free
> downloads, p2p networks or podcasts gives artists the best available
> opportunity to build a relationship with the largest number of
> potential fans at the lowest possible cost--and that once that
> relationship is established, there are many opportunities for the
> artist to profit by it: CD and download sales, concert tickets,
> merchandise, etc. A fan who feels a bond with an artist is happy to
> support them. That's been proven over and over again.
>
> Do I expect the RIAA to get this? Not a chance.
>
> Even if they don't, we have the independent music movement. As Craig
> Burton says, "resistance creates existence". The more the old record
> industry resists podcasting, the faster the independent music industry
> will grow with podcasting's help.
>
> Resources
>
> Summary of the Small Webcaster Settlement Act courtesy of Shelley
> Steinbach, American Council on Education and Ken Salomon, Dow, Lohnes
> & Albertson, PLLC.:
> http://counsel.cua.edu/fedlaw/webcast.cfm
>
> DIY radio with PODcasting:
> http://www.itgarage.com/node/462
>
> Broadband on the Run:
> http://gillmordaily.podshow.com/?p=8
>
> RAIN: Radio and Internet Newsletter:
> http://www.kurthanson.com/archive/news/080505/index.asp
>
> Internet Radio: Music Royalties - The Basics:
> http://www.kurthanson.com/internet-radio-handout5-1.pdf
>
> Future of Music Coalition:
> http://www.futureofmusic.org/carpfactsheet.cfm
>
> Craig Burton Weblog:
> http://craigburton.com
>
> --
> Doc Searls:
> mailto:doc-at-ssc.com is Senior Editor of Linux Journal. He writes the
> Linux for Suits column for Linux Journal. He also presides over Doc
> Searls' IT Garage:
> http://garage.docsearls.com, which is published by SSC, the publisher
> of Linux Journal.
> _________________________________________________________________
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