Legal Eagles

License to Pod?

By Brian K. Carvell, Esq. Published May 2007

Advances in technology never cease to amaze. I was a little slow in getting my first mp3 player, but this past December when my birthday rolled around, my wife and family all chipped in and got me one, complete with video and photo capabilities. This thing is amazing! It holds up to 15,000 songs! No longer do I need to keep a CD wallet in my car and try to avoid an accident while frantically flipping thorough the pages looking for the right music to suit my mood. And while I have yet to download one, I have also learned about the world of podcasts.

A podcast is an audio file placed on the Internet that you (and now I) can download to an mp3 player. The podcast is different than “streaming audio” because a podcast is a file that you actually download and listen to at a later time, whereas streaming audio is “live” music on a website that does not require you to download a computer file. Most podcasts are akin to talk radio shows, but some contain music, television clips, movie clips, lectures, and so on.

Now for the part of the column where I amaze the reader with my psychic abilities: I predict legal problems in podcasts’ future. Okay, it’s actually not such a bold prediction to make, as any podcast that contains any material that has been granted copyright protection will likely suffer the same problems as Napster, Kazaa, and all those other peer-to-peer file-sharing networks. While there have been no lawsuits filed to date, I fully expect the owners of protected works to fight back against the illegal distribution of their work in any unauthorized podcast. A copyright offers the owner protection from the unlawful distribution of his work, and a podcast that contains this material is a violation, unless the proper licenses have previously been obtained.

So why can you have the latest Killers song playing on your Myspace page, but not in your podcast? The answer is rather simple. Your Myspace page simply contains streaming audio that can only be listened to while someone is visiting your page. If you uploaded the song to your Myspace page, it means that you have previously purchased a copy of the song, and you’re just letting your friends listen to it — no copyright violation. However, when you put the same song in your podcast, you have now put the song in a format that allows it to be downloaded and listened to on someone else’s MP3 player at his or her own time and discretion. You’ve given away someone else’s property.

As I wrote a few months ago, everyone needs to be aware that the record companies are beginning to crack down on illegal downloading. I’ve seen some of these lawsuits, and let me tell you, they ain’t pretty. I believe suits against podcasts aren’t far behind. So readers of DRUM! beware! No one wants the hassle of a lawsuit, so think long and hard about what you put in a podcast before you make it available to the world.

This article is not intended as legal advice. If you have specific legal concerns, I recommend that you personally contact an attorney.