Creating legal independent music podcasts [DJ Alchemi]

26 May 02005

Creating legal independent music podcasts

The use of music in podcasts is a legal grey area, but there are an increasing number of tools and services that make it easier to source music legally, usually from 'unsigned' artists, creating a genuinely grassroots channel for independent music and musicians.

The reason for the doubts over the legal status of music podcasting is that, in terms of format, podcasts emulate radio programming, but technically they are downloads. While rights owners may be in favour of the exposure they get from radio-style features, they don't want podcasts to give listeners 'permanent' versions of their music, which could cannibalise sales. In the US, the collecting society ASCAP updated its Internet licensing to make allowance for podcasts. Though this might have given the impression that podcasters just had to obtain this once licence to make their work legitimate, the situation remains more complex for 'standard' copyright music — see the articles podcasting, music and the law and legality of using music in podcasts remains foggy.

So, as it stands, music podcasters appear to have four options available.

Keep a low profile, and hope no-one sees it as worthwhile to sue a small-timer like you. This is the least justifiable and sustainable option. If you're in the US, you could get an ASCAP licence and cross your fingers that that will be seen as making an effort to stay on the right side of the law. But you are consigning yourself, by definition, to a limited audience.
Play just parts of songs. This is in part the approach taken by Podshows, the first and biggest professional music podcasting site in the UK (though, even then, they are only streaming and not downloading some shows at the time of writing — see their FAQ). By not playing the complete song, the scope for the podcast to displace a purchase of the music is reduced.
Make it yourself. This is the most labour- and capital-intensive but also the most grassroots approach. I know of two instances from my (limited) listening. The Cambridge Independent Podcast recorded live 'sessions' by local bands who didn't have their own recordings to offer. To do this to a decent standard, you need fairly extensive recording equipment. Of course, if you're a label, like the independent lap records, then this investment is already 'sunk', so making a podcast featuring some of your latest release is only a small extra cost.
Find music that the rights owners have given permission to use. This is not an option for the likes of Podshows, who want to play mainstream chart music, but it does open up the field for unsigned acts who may not yet have much (or any) widely distributed music available for sale, but for whom exposure is at a premium.

The rest of this posting focuses on tools and service to support mainly the last of these options, and on the possible implications of their widespread use.

Tools to help make podcasts

Gnomoradio is open source software (currently Unix/Linux only) that performs multiple functions: as well as simply playing music files, it can find, fetch, and share music that is freely available for file sharing (i.e. licensed under one of the Creative Commons licences). It also recommends songs based on a user's listening preferences, using the same principles as Last.fm online radio streams. Having downloaded such music, you could incorporate your selected tracks in a podcast.

Indy provides similar functionality, currently for Mac OSX only, and allows users to submit publicly available music for inclusion in the software's online 'library'.

Webjay is a shared playlist service that helps people build and play playlists using music freely available on the Internet. Having created a webjay playlist, you can obtain the XML to make this playlist into a podcast with a single click, and the Smoothouse webjay wizard helps generate the correct HTML for embedding a webjay playlist in your podcast.

Intermediary services to source music and create podcasts

IndiePodcasting.com provides podcasts that "offer a way for webcasters, broadcasters, and podcasters to find quality music content from new indie and unsigned musicians". The site does its own quality screening (that is, it does not allow open access to all music submitted), but it contains only two-minute versions of songs since IndiePodcasting.com is not itself licensed to provide full tracks — the music content page explains why Creative Commons licences are not used. As an intermediary to support podcasting of new music, IndiePodcasting combines options 2 and 4 above.

As well as the two-minute clips, the podcast feeds from IndiePodcasting.com provide fully designed artist pages, with links to additional information about the artist, a photo, short bio, and a link to purchase music — so the service acts as a fairly rounded promotional vehicle. Podcasting News' review provides more details of the service.

Opsound is at the opposite end of the spectrum. It provides a 'pool' of music to which anyone can add, as long as they agree to their music being released under a Creative Commons Attribution-ShareAlike licence or placed in the public domain. Full tracks are available with no Digital Rights Management restrictions, along with basic artist information (usually written by the artists themselves). Podcasters (and others) can incorporate the tracks (or, indeed, remix them in some way) and incorporate them in their podcasts, as long as they attribute the tracks to the original authors/musicians and ensure that their podcasts are issued under the same Creative Commons licence.

Finally, as of this week, GarageBand.com has got in on the podcast act, offering a simple and powerful service whereby users can record their own spoken intros, upload them, and mix them with their selection from the hundreds of thousands of tracks available on the site, before publishing the sequenced mix as a podcast 'programme'. If you choose to record your spoken intros by phone, you don't need any additional software on your computer to create a podcast — which is a real benefit given the current lack of maturity in client software fpr producing podcasts. Also, hosting of podcasts on GarageBand.com is free, being supported by the advertising on their site. Here is ZDNet's coverage of this development.

Implications for independent music podcasts

The opening created by podcast-support services like GarageBand.com's is for a new breed of intermediary between new/unsigned acts and their potential audience. As has been obvious to some for a while, the Internet is not exclusively or mainly about disintermediation, providing a direct connection between acts and audience.

The history of the Internet Underground Music Archive showed that just giving people a browsable database of new music tracks does not make for an engaging or rewarding listening experience. By having someone select and curate some tracks into a coherent programme, possibly spiced up by some informative and entertaining talk, these large volumes of hitherto not-commercially-viable recordings can be brought to life. This process is a kind of re-intermediation, wherein the new intermediaries combine some of the skill-sets of DJs and A&R staff, but may not be employed by the same people who traditionally employ DJs and A&R staff. Sooner or later some of these new intermediaries will build a reputation and/or a new business model on the back of their work.

As early would-be examples of this, see the Association of Music Podcasting (AMP) site, which says to prospective listeners to its podcasts,

…we want you to hear from the little guy. The do-it-yourself type of musicians who are passionate about what they do. As you're listening to our shows, you may hear a band that grabs your attention and doesn't let go. One way to help podcasting become a strong vehicle for promoting the indies lies in you, the listener.

And two weeks ago, another US collecting society, BMI, announced that it is starting to provide podcasts of new songwriters and artists. The stated aim of these podcasts is "to bring promising new songwriter/artists to the attention of key industry executives including record company A&R staffers". But surely any A&R staffer with a bit of nous will read between the lines that this kind of service could be used to bypass their traditional gatekeeping role, and, in time, to make them redundant by replacing them with a different kind of intermediary?

With last week's news that a new version of iTunes will support podcasting the format takes one step closer to going mainstream, notwithstanding Steve Jobs' sniffy aside about it being "Wayne's World for radio". For sure there are a lot of crap podcasts out there. Mostly these are just playing around with the new technology without re-thinking the cultural potential it allows.

What makes a new medium or format is when it applies the technology to exploit new creative possibilities, working within legal framework and meeting an audience demand that existing media (in this case, mainstream radio) is failing to satisfy. The kind of services and tools listed here significantly increase the chances of music podcasts creating and filling such a new niche.