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Podcasting Legally

From the Podcast Pedant, I see that Creative Commons has issued a guide to podcasting legally. It quotes from the Copyright law:

Mere listings of ingredients as in recipes, formulas, compounds or prescriptions are not subject to copyright protection. However, where a recipe or formula is accompanied by substantial literary expression in the form of an explanation or directions, or when there is a combination of recipes, as in a cookbook, there may be a basis for copyright protection.

On the uncertainty of whether a performance right applies to podcasting:

Although your actions in creating a podcast ultimately enable a willing listener to hear the music (and other contents) contained in your podcast, it is currently still an undecided question whether you are therefore “publicly performing” a work merely by making it available for download; the US Copyright Office has declared this “an unsettled point of law that is subject to debate.”(source (PDF): U.S. Copyright Office, DMCA Section 104 Report, August 2001, available here , xxvii.) No court has yet squarely addressed the issue, which means that podcasting is currently operating in a realm of considerable uncertainty.

Some of the leading copyright law commentators have suggested that non-simultaneous transmissions, such as podcasts, probably do not implicate the public performance right. (See Bruce P. Keller & Jeffrey P. Cunard, Copyright Law: A Practitioner’s Guide, 2004 ed., § 14.2(E). Cf. Melville B. Nimmer & David Nimmer, Nimmer on Copyright, August 2005 ed., § 8.14(B)(1) (noting that internal operations of a computer do not seem to constitute a performance).) Performing rights organizations, by contrast, have asserted that “[e]very Internet transmission”, streaming or download, is a public performance. For example, ASCAP’s Internet license FAQ states that ASCAP’s view is that “every Internet transmission of a musical work constitutes a public performance of that work.”

Also cited in the document is a 70 page document, Will Fair Use Survive?(PDF) The usual arguments, though interesting nonetheless. Two analyses and interpretations I found interesting:

  • difference between cc 1.0 and cc. 2.0 licenses: apparently 2.0 includes a disclaimer of liability. That means that if you distribute CC content with a 2.0 license that is later found to be infringing, you are still liable from the original copyright holder.
  • on joint ownership of written expression: (I quote): if you work collaboratively with another artist to create some expressive work, then you may be a joint author and owner (rather than a sole author/owner) of the work. In that case, you will need to check the terms of any agreement between you and your fellow collaborators to see if you are able to freely exercise your rights as a joint author/owner and incorporate it into a podcast or whether you need the permission of your co-author. As a general rules, each joint author has an independent right to use or license the copyright without the permission of the other, subject only to a duty to account to the other co-owners for any profits; however this may be varied by an agreement between the joint authors.

The document is thorough and extremely useful for relating everyday situations to existing legal terminology. However, some of the more arcane legal principles are irrelevant to the independent DIYer. I for example expect never to have to worry about Licenses For Reproduction And Distribution Of Musical Works or Master Use License. These are constructs likely to interest gigantic media companies, but unlikely to serve my individual interest. In fact, the main function of this guide seems to be how to avoid entanglements with major media companies.

The overview did not directly address the liability of distribution networks or webhosts, except for the disclaimer of liability as noted above. What kind of proof do they require for a takedown notice? Who is liable in the event of a wrongful takedown notice? What is the threshhold for an ISP qualifying for safe harbor? What is considered sufficient amount of notice (days, weeks, months?).

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