Editor's Note: The following is the text of the
August 18 edition of Doc Searls' SuitWatch newsletter.

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I'm drafting this just before driving from Santa
Barbara to San Francisco to attend LinuxWorld
Expo. I'm preparing to ease my trip with a
collection of podcasts, chief among which will be
the latest edition of
The Roadhouse--"the
finest blues you've never heard"--by fellow
Linux Journal writer Tony Steidler-Dennison.

The Roadhouse features "podsafe" or "non-RIAA" music, mostly offered through
Creative Commons
licenses. Playing podsafe music is easy for the
podcaster and good for the artist, which is why
it feeds a fecund and rapidly growing independent
music ecology.

But ignoring the huge portfolio of conventionally
copyrighted
(RIAA)
music is nearly impossible,
thanks to the countless tunes that have been
running in our heads since we were babies. Plenty
of podcasters,
me included,
want to be able to play chunks of this music--even to help sell
it. How can we do that on a podcast? Better yet,
how can podcasting participate in what Lawrence
Lessig calls
"remix culture",
which he says has been the very nature of culture itself since our
ancestors painted pictures of bison on cave walls.

Turns out I'm not the only one asking this question.

A few days ago,
"Storm clouds gather over podcasting",
by Michelle Kessier, appeared in USA Today.
It's about the podcasting travails of
KEXP
and
KCRW,
two of the best noncommercial radio stations in the country. In addition to
radiating over the airwaves,
both
also
stream on the Web and
syndicate
podcasts.

Here are the key paragraphs:

A podcast is a digital recording of a radio-style
audio program that can be downloaded from the
Internet and played on a digital music player.
Many podcasters think the technology could
revolutionize radio as TiVo did television.

But record labels worry that listeners will
pirate the songs contained in the downloaded
radio shows. The result: yet another Napster-like
standoff over piracy and music rights.

Podcasting is a great way for KEXP to reach
thousands of new listeners, especially those
outside of Seattle, Richards says. But the
station can't podcast programs such as John in
the Morning - Richards' variety mix of
independent and mainstream music - because record
companies haven't provided an easy, affordable
way for podcasters to license songs. That's why
most podcasts today are talk radio.

In fact, KCRW's
Morning Becomes Eclectic
show,
one of the best music programs on radio, is
selectively offered for
podcast
by KCRW. From what I gather, only the podsafe ones pass
through. (I just checked with Apple's iTunes
podcast directory, and the list of available
shows from the Morning Becomes Eclectic catalog
is down to just one item, from June 28th of this
year. Last time I looked there were many more.)

Since podcasts are recordings, they can be played
at any time. Listeners can pause, fast-forward or
rewind them. And since podcasts are posted
online, listeners can download programs from
radio stations and independent broadcasters from
all over the world.

The podcasts can also be hacked and pirated. An
enterprising listener could pull songs out of a
podcast and turn them into music files or CDs.

That's why many record companies say the
technology is promising but problematic. For
example, OK Go and several other emerging bands
with EMI have their own podcasts. But EMI is not
ready to approve a blanket podcasting license.
"Podcasting is potentially very exciting," says
Executive Vice President Adam Klein. But the
company needs contracts "that are responsible to
everybody," he says.

Ruth Seymour, general manager at influential Los
Angeles public radio station KCRW, worries that
those contracts will take years to be worked out.
That would keep podcasting from reaching its
potential, she says.

Several of KCRW's programs - notably a
well-regarded new-music show called Morning
Becomes Eclectic- would be perfect for
podcasting, Seymour says. Many already have fans
worldwide thanks to an early form of digital
radio called streaming media.

Streaming media is different from podcasting
because it's not a recording, which makes it
harder to pirate. A stream is essentially a
broadcast that travels over the Internet instead
of the airwaves.

Record and radio companies have struck a blanket
licensing agreement for streaming based on
traditional radio licenses. No such agreement
exists for podcasting. So if Seymour wanted to
podcast Morning Becomes Eclectic, she would have
to sign individual contracts with each record
company.

"That's an impossible process," says digital
music analyst Phil Leigh at Inside Digital Media.

For now, KCRW is podcasting only talk programs,
live performances and independent bands. "I
really want to podcast (major label) music!"
Seymour says. "It's where the future is ... (but)
I don't want a cease-and-desist order."

There are buildings full of lawyers in Los
Angeles that "clear rights" for a living. Without
them, movies would be much easier and cheaper to
make and distribute. But, thanks to Hollywood's
native regulatory regime, the movie
Tarnation,
which wowed the 2004 Cannes Film Festival and
cost $218 to produce, faced a bill upwards of
$400,000 to "clear rights" for the video clips
used in the movie.

Ordinary, over-the-air radio, including Sirius and
XM satellite radio, doesn't have to deal with
that kind of hassle. By terms worked out when
radio was young, stations only have to pay
composers. They do this through ASCAP, SESAC and
BMI. That's it.

Podcasting is a new breed of service. As a music
podcasting pioneer, Tony has to blaze trails
through a copyright jungle. He explains:

My concern with securing permissions is that I
really have to do it in a black box. All the
rights--mechanical, performance, composition,
etc.--are negotiable details in a contract
between the artists and the labels. Obviously,
I'm not privy to the details of those contracts,
so I'm always a bit nervous about whether the
person granting the rights actually has to power
to do so.

I've asked for and been granted permissions by
several independent labels: Black and Tan,
Alligator, TopCat, and Blue Sunday Entertainment.
In every case, it's gone through the president of
the company, though the discussion may have
started with a radio rep.

In fact, I'm currently hammering on Tone-Cool
(Fabulous Thunderbirds, Hubert Sumlin, Susan
Tedeschi, Double Trouble, Taj Mahal, Rod Piazza
and the Mighty Flyers) President Richard
Rosenblatt, but he's been a little less than
responsive. I've also gotten e-mail from them
explicitly granting permissions to play the music
of specific artists in the podcast. And, I make
it clear that for the format of my show, I'm
actually tighter than the streaming guidelines of
the DMCA. It might be a thin approach, but I
figure if someone comes after me, I have some
deeper pockets to fall back on--the label itself
as represented by the president, and tighter
controls than Congress has required for similar
technology.

Two things to note here. First, Tony is dealing
only with independent labels, not with the giant
labels--Sony and Warner--that comprise the
RIAA. Dealing with the big copyright holders
poses a challenge beyond the endurance of all but
the entertainment lawyers who thrive on this kind
of thing and the fees they bring. Second,
there's this business about "the streaming
guidelines of the DMCA".

"Guidelines" are an understatement. To Web cast legally, one must:

1. Register with the Copyright Office, filing a Notice of Use of
   Sound Recordings Under Statutory License. This "compulsory license"
   costs $20.
2. Not provide an "interactive service" that provides listeners
   a choice of songs played.
3. Not allow call-in requests for music, unless the
   Webcaster chooses among multiple requests, so the caller
   has no direct influence.
4. Play no more than three selections from any album or CD
   in a three hour period.
5. Play no more than three selections from any one artist
   in a three hour period.
6. Play no more than three of the two items above
   consecutively.
7. Not publish advance program schedules that allow listeners
   to know exactly when any particular selection will be
   played.
8. Identify the song title, the album or CD, the artist and
   information encoded by the copyright owner identifying
   related information, in text.
9. Not broadcast bootlegged or pirated copies of
   recordings.
10. Not associate music with visual images that suggest a
    connection between the music and the images.
11. Play music from a site that is principally concerned
    with music, rather than product sales.
12. Cooperate with industry "anti-piracy"
    efforts.
13. Pay
    royalties
    on a per-song, per-listener basis.
14. Keep track of and report on all the
    above.

Accounting information and royalties go to
SoundExchange,
the recording industry's instrument of administration, collections and
other fun stuff.

There are different rates if you qualify as a
"commercial Webcaster/broadcast simulcaster",
"small commercial Webcaster/broadcast
simulcaster", "noncommercial
Webcaster/simulcaster", "noncommercial
educational entity" or "NPR/CPB member station".

This regulatory morass all springs from the belly
of the Digital Millennium Copyright Act (DMCA),
which was passed by Congress in 1998, but left
settlement of sticky Webcasting copyright issues
up to opposing parties to solve among themselves,
through a Copyright Arbitration Royalty Panel
(with the four words arranged in that order to
avoid the spelling derived when the middle two
are reversed), or CARP.

The only Webcasters not clobbered by the
"agreement", which nobody on the Webcasting side
liked in the least, are the public radio
stations.

As the Copyright Office of the Library of
Congress put it in
"Determination
of Reasonable Rates and Terms for the Digital Performance of Sound
Recordings and Ephemeral Recordings; Final Rule",
entered into the Federal Register on July
8, 2002, "...NPR reached a private settlement
with the Copyright Owners..."

In effect, that allows KCRW and KEXP to simulcast
on the Web. In other words, as bad as the
situation may be for them, they are in a
privileged Webcasting caste. The USA Today piece
doesn't say that. Nor does it bring up this
little item I just found near the bottom of
SoundExchange's rates page:

National Public Radio ("NPR") member stations and
public stations that are qualified to receive
funding from the Corporation for Public
Broadcasting ("CPB") may be covered by a license
agreement entered into between NPR/CPB and
SoundExchange® that covers transmissions made
between October 28, 1998 and December 31, 2004.
No private license agreement has yet been entered
into between NPR/CPB and SoundExchange for the
2005 license period. For further information,
public radio stations should contact Denise
Leary, NPR Deputy General Counsel Programming and
Senior Legal Counsel at dleary@npr.org.

Note the word "may" in the first sentence.

Looks like the RIAA and SoundExchange are looking
to get some fresh bucks out of the public
stations as well.

In any case, commercial stations have it far
worse. One sign of this situation is the
disappearance
of KPIG
from the Web after the Determination of
Rates was made.
KPIG
was the first commercial
radio station to simulcast on the Web and one of
the best by far. Today, KPIG is available only
by subscription over Real's and AOL's closed and
private systems. It's off the public Internet.

Between writing the last paragraph and this one, I drove
up to LinuxWorld and back, listening to dozens
of podcasts along the way, including many on the
only radio station in the country that plays an
all-podcast format, Clear Channel's KYOU/1550am
in San Francisco. KYOU, the licensed call letters
are KYCY, has a transmitter alongside Highway 101
in Belmont, California, and a signal pointed
northwest, to the central and northern Bay Area.
The signal has a null or a dent in the coverage,
toward the South Bay. It's a third-tier signal in
a top-five market and is good for testing out new
formats. The jury is way out on this one, but I
want to give the station programmers kudos for
reaching out to myself and others for guidance.
They need it. So do we all.

I also was intercepted by phone at a Starbucks by
Steve Gillmor (on whose Gillmor Gang podcasts I
serve), who argued with me about many of the
subjects in this piece. That became a
surprisingly listenable podcast you can find
here.
It was relatively easy for the recording industry
to strangle Webcasting in the cradle. I covered
the crime extensively in Linux Journal and
anthologized my series of reports in my SuitWatch
from last September, which can be found
here.
If you're interested in background, there's a
rich trove of background materials there.

At best there were a few thousand Internet radio
stations at the time the DMCA finished shutting
many of them down. The ones that survive include
some real gems. Bill Goldsmith's Radio Paradise
is at the top of my personal list. Bill was
highly involved in the CARP negotiations from the
Webcasters' side, and he was the hacker-in-chief for
KPIG during the whole time it lived out on the
open Net.

I've been wondering if podcasting's relative
strength will make a difference this time around.
Last September 28, I ran a piece called "DIY Radio
with PODcasting" on IT Garage (see Resources). Among other things,
I wrote, "But now most of my radio listening is to what
Adam Curry and others are starting to call
podcasts. That last link currently brings up 24
results on Google. A year from now, it will pull
up hundreds of thousands or perhaps even
millions."

Millions it is. That search today brings back
18,600,000 results. If I were the RIAA, I'd want
to take advantage of those kinds of numbers, not
fight them.

So, what's the way to bet? I thought Bill
Goldsmith would be a good one to ask. Here's an
excerpt from a brief e-mail exchange we had
yesterday:

Doc Searls: Does Radio Paradise adhere to all those
Webcasting rules regarding number of artists from
an album in a 3-hour period, not providing
interactivity, etc.? If so, how is that going? Is
it as big a PITA as it seems?

Bill Goldsmith: Actually, it's not that much of a pain. My
vision for Radio Paradise includes a lot of
variety--so the DMCA restrictions on the number
of songs by the same artist or from the same
album in a given period of programming is
actually in excess of what we would ordinarily
do. As for interactivity, I see radio as a
creative medium--with the creator being the DJ.
I can see the value in and attraction of
services that allow the listener to customize
their experience, but that's not what we're about.

DS: Is there any hope that the RIAA will be less
awful to podcasters than it was to Webcasters
during the CARP process?

BG: I would expect them to be even more rigid and
less flexible toward podcasters, since inherent
in open-format podcasting--that is, podcasts that
will play anywhere without DRM restrictions--is
the downloading to computers or devices of
complete audio files of the podcast content,
which in the case of a music podcast can be
relatively easily separated into individual songs.

Do I personally think that sales of CDs or
high-quality purchased downloads would suffer if
stations like RP were allowed to podcast
copyrighted material? No way. I agree with a
substantial group of artists and small labels who
feel that exposure is exposure and that the
distribution of 128kbps-grade MP3 files of their
music via free downloads, p2p networks or
podcasts gives artists the best available
opportunity to build a relationship with the
largest number of potential fans at the lowest
possible cost--and that once that relationship
is established, there are many opportunities for
the artist to profit by it: CD and download sales,
concert tickets, merchandise, etc. A fan who
feels a bond with an artist is happy to support
them. That's been proven over and over again.

Do I expect the RIAA to get this? Not a chance.

Even if they don't, we have the independent music
movement. As Craig Burton says, "resistance
creates existence". The more the old record
industry resists podcasting, the faster the
independent music industry will grow with
podcasting's help.
Resources
Summary of the
Small Webcaster Settlement Act courtesy of Shelley Steinbach, American
Council on Education and Ken Salomon, Dow, Lohnes & Albertson,
PLLC.

DIY radio with
PODcasting

Broadband on the
Run

RAIN:
Radio and Internet Newsletter

Internet
Radio: Music Royalties - The Basics

Future of
Music Coalition

Craig Burton Weblog

Doc Searls is Senior Editor of Linux Journal.
He writes the Linux for Suits column for the magazine. He also presides over
Doc Searls' IT Garage.