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Will it ever be legal to podcast music? An interview with attorney David Oxenford – Part I

David Oxenford is one of the authors of the Broadcast Law Blog and a partner with Davis Wright Tremaine, working in radio broadcasting, media, music, and webcasting.

Today, Part 1.

Coming up…

Part 2: It’s time for Radio to charge labels for airplay – legally Part 3: Why can’t the Radio industry enter the music business (hint: They can)?

What follows is an abbreviated transcript. I recommend you listen to the audio podcast here for the full impact.

David, when, if ever, will the labels figure out a way to facilitate the process of podcasting music? When will those rights fees issues be worked out?

That’s a big question because it involves not only the labels but also the music publishing companies. And when you put something into a specific on-demand service in a digital world, you’ve got to deal not only with the folks who have created the music, the particular recording of the music, the record labels, the copyrights, and the recording of a particular song, but also with the composers. So there are all sorts of issues in any sort of on-demand service.

Okay, well lots of things are hard, but the first step on a long journey requires that first step. What do you see as the timeline here? Will we ever be able to legally podcast music?

Right now there is no easy clearinghouse, and I really haven’t even heard of anybody talking about setting up one on the label side of things. So if you want to play a particular Dave Matthews song on a podcast and you want to go to some website and pay $2.00, $10.00, $100.00, whatever, to include it in a podcast, there’s nothing like that now or on the horizon. As far as I know, it’s not even being discussed.

Now, there are plenty of services that will provide a clearinghouse for some music, but it’s only the music that they have the rights to. It’s not the entire universe of music like you get through the statutory license when you’re a webcaster.

Well why? Why isn’t it being discussed? If I want to put Red Hot Chili Peppers on a podcast, why isn’t there somebody out there whom I can send my money to? I know there’s a fear that any content in any unprotected digital form is ripe for piracy, but surely you can’t diminish piracy by eliminating legitimate legal access, right?

There’s no question it should be done. Right now, you have to go through each and every record company and negotiate separately for every song, and for the small guy it makes it almost impossible.

Isn’t this an obvious revenue opportunity for the labels?

Yes, I would think it would be.

Then what’s keeping this from happening?

You know, I think it’s inertia. We’re talking about little bits of revenue, you know, and as we all know in the internet world little bits of revenue add up, eventually, to big revenue, but to take the initiative to get the rights to make these songs available in an easy way and set the pricing schedules and to make songs available to podcast or for other on-demand uses, it’s not a simple process. It involves negotiations with the artists, and the composers, so I think the record companies simply haven’t gotten around to it.

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