Podcasting, Copyright, and Lessons from Digital music

Over the last couple of days I have been listening to some of Dave and Adam's podcasts and I must admit that I cringed a bit when I heard some familiar music and caught some comments about using BitTorrent to catch the West Wing.

Specifically this morning I listened to an IT Conversations with Dave from October 27th which was very cool and gave me a lot more insight into Dave than what I have gleaned from his blogs these few short months I have been reading it. He describes podcasting in awesome terms regarding the evolution of the technology, but fails to speak to the IP issues. (Not Internet Protocol :-) )

Podcasting, which I think is not what this ultimately is labeled, has a decision to make. The leaders of this 'movement' or however you want to describe this have two paths that I see. The first path is to savor the technical elegance of what they have created with RSS and enclosures and OPML, etc. and ignore the underlying copyright wars that have been fought since the time of the passage of the DMCA. Napster's solution was elegant. MyMP3 was elegant. We all recognize and bemoan the state of content vs. Technology as articulated by Lessig and others. If people insist on using copyrighted content, and talk of embracing the technology that the media companies despise in a flagrant way, this form of distribution/new media/ edge of the network content will be demonized, litigated and made an example of by the armies of lawyers that fight these battles daily.

The second path is to make this an attractive means of distribution for traditional media. You do that by building an audience. You do that by showcasing those artists and creators of content that embrace the new paradigm. You do that by pointing to useful uses of BitTorrent like software distribution that hold the technology out as being ultimately good replacements for the broadcast or physical alternatives. You do that by approaching the media companies and offering to work with them in innovative ways with their cooperation. I think Warner Music Group is a good example of that with MP3 blogs. You learn the lessons of previous litigation and understand where you are stepping on a landmine and where you aren't. At Mp3.com we weren't found guilty of allowing people to stream from lockers content that arguably may have Fair Use merit. We were found guilty of ripping the CDs and putting the files on servers. That hurts, and it doesn't really advance the argument over Fair Use. At least today.

I heard a comment about a podcaster getting an ASCAP license, which is very cool. But that isn't all that is required. The publishers will argue that a mechanical reproduction of their content requires a license and payment.

An alternative distribution platform, that is spearheaded by well known and intelligent people who can lead the direction of this technology/movement, will ultimately succeed or fail like so many other creative and technically brilliant ideas depending on the choices they make. I hope they show the promise of this technology and get the media companies to move towards us, not move us towards the courts.