Earlier this week I did a radio show on KPBS with Dave Winer. At one point in the conversation I stated that if the two of us were talking, and we had a Who song playing in the background, that if we recorded that conversation and made it into podcast then this would be copyright infringement unless we had the permission of the various rights holders. Dave retorted that he didn't necessarily think that is correct. There may be some strange application of Fair Use that I have missed over the last 7 years or so, but I don't believe that is the case.
What I found particularly funny about this exchange is how some of the blogger intelligentsia hold themselves out as thoughtful and informed yet fail to do the simple homework when all of the source materials are freely available for them. The DMCA? You can find it online. The 2nd district court rulings in MP3.com vs RIAA? Online. 9th district Court rulings in Napster vs RIAA? Online. Kazaa, etc. etc. Sorry for the lack of links but you get my point.
The conclusion that I have come to is that many including Dave wish that the Copyright fairy would come along and change the existing body of law because its just not fair. Although I agree with many who think that it would be great if we could use samples and play mashups, and play the songs of our youth in podcasts and home videos etc. the reality today is that you can't.
I propose that Dave and others who question the status of how podcasts fit into existing copyright law take some of the following steps:
1. Go read the law. I would include the DMCA and the various rulings in the dozens of digital music lawsuits over the past 7+ years.
2. Talk to your friends Larry Lessig and Hank Barry. I spoke with Hank briefly at Bloggercon and although we didn't talk at length I am certain that he would reiterate what I have said.
3. Immediately stop playing copyrighted music in your podcasts. If you care about the technology and its potential, don't make it a target for yet another round of lawsuits.
4. Start a conversation with the RIAA and the publishers. I am meeting with the CEO of the Harry Fox Agency next week. Understanding how they view the law and if there are opportunities to obtain experimental licenses or find other accommodations is a better way than just pretending or hoping that everything is just fine.
I would be extremely excited to find out that I am wrong about this, but given my experience, I have a very high degree of confidence that I am spot on.
I recall how the labels held technologists in great contempt during the late 1990s in the digital music space because many of them wouldn't take the time to either take a walk in their shoes, or take the time to understand the law. I find it ironic that those who would hold people to higher standards when they talk of the blogosphere, technology or internet ethics etc. can't do the same when faced with issues around intellectual property.