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Prof. Glenn Reynolds writes on Podcasting and New Media in his TechCentralStation column today.
Interesting point:
One of the biggest things holding podcasting back -- and protecting commercial radio -- is the copyright barrier. Radio stations operate under so-called "blanket licenses." By paying an annual fee to clearinghouse organizations like ASCAP or BMI, they can play songs without having to get permission for each songs. The clearinghouses then divide the money according to a formula and forward payments to artists. (Nothing wrong with that; I'm an ASCAP member myself -- and so is my brother, whose band, unlike mine, actually makes him a living).
On the Internet, however, things are much harder. In a recent column in Wired magazine, Larry Lessig reports on how copyright concerns made it effectively impossible for a nonprofit he works with to put a recording of "Happy Birthday" (yes, it's still under copyright and will be until 2030) on the Web. At first, they thought they could purchase a "mechanical license" (which operates under a sort of clearinghouse arrangement that's similar to the blanket licensing used by radio). But then the lawyers decided that they needed a separate permission from Warner/Chappell Music, which manages the rights to "Happy Birthday." Warner first agreed to grant them a license for $800, but then changed its mind. By that time, the lawyers were worried that people would take Lessig's performance and remix it, making him an accessory to copyright infringement. Lessig concludes: "The existing system is just workfare for lawyers."
Yes, it is. And it's likely that commercial broadcasters -- who are seeing their audiences shrink because, not to put too fine a point on it, their programming stinks -- will oppose any legal changes that might eliminate this sort of barrier, because anything that makes life easier for podcasters, and Web music generally, is likely to make things worse for them. At this point, their comparative advantage isn't so much technological, or creative, as it is the advantage conferred by a friendlier legal environment.
As someone who's in the business of selling law degrees, I suppose I should be in favor of "workfare for lawyers." But I don't think that the existing system is really very good for anyone. Our best hope is that the number of podcasters, and podcast listeners, will become large enough that Congress will pay attention and -- as it did in the early days of radio -- pass sensible legislation that will make podcasting as user-friendly from a legal standpoint as it is from a technical standpoint. That'll happen, if people organize to make it happen.
Will they? That's a question that can't be answered by looking at technology. I am no fan of contemporary commercial broadcasting, which seems to rely on a business model whereby the only listeners are people trapped in their cars -- hence the grating commercials and the repetitive playlists -- but the idea of legislation makes me nervous. Congress usually comes up with compulsory licenses and price-fixing, and treats the occasion as an opportunity to distribute pork to favored constituencies.
But serious thought about how to reduce transaction costs would indeed be worthwhile. Perhaps through private action, as is occurring in the high tech standard-setting space.
posted by James DeLong @ 11:23 AM | Radio
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