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Harvard Journal of Law Technology Volume 19 Number 1 Fall 2005 WILL CONGRESS KILL THE PODCASTING STAR Matthew J Astle TABLE OF CONTENTS I INTRODUCTION 162 II A PODCASTING PRIMER 163 A Origins 163 B Technology 164 C Growth and Practice 165 III WEBCASTING THE FATE PODCASTING WANTS TO AVOID 169 A Introduction and History 169 B A Tangled Web of Webcasting Law 171 1 Rights Under Copyright Law 171 2 The Digital Performance Right in Sound Recordings Act 172 3 The Digital Millennium Copyright Act 173 4 Copyright Arbitration Royalty Panels 174 C The Webcasting CARP Decision and Its Aftermath 176 D Where Is Webcasting Today 178 IV PODCASTING S POOR FIT WITH THE CURRENT LEGAL REGIME 180 A Podcasting and the Creation of Copyright 180 B Podcasting and Original Content 181 1 Reproduction and Implied Licenses 181 2 Scope of the Implied License 186 3 Revocation of the Implied License 187 4 Distribution and the First Sale Doctrine 188 5 Podcasting and Digital Rights Management 190 C Podcasting and Non Original Content 192 1 Licensing Rights to Reproduction of Sound Recordings 192 2 Licensing Rights to Reproduction of Musical Works 193 3 Licensing Rights to Performances of Sound Recordings 196 4 Licensing Rights to Performances of Musical Works 201 5 The Safe Harbor of Creative Commons 203 J D cum laude Harvard Law School B A Music and B A Communications magna cum laude Brigham Young University Currently practicing in the copyright and mass media groups at the Washington D C law firm Wiley Rein Fielding LLP Thank you to Paul Weiler and my wife Shelly Astle for comments and support throughout the drafting and revising of this article 162 Harvard Journal of Law Technology Vol 19 6 Public Domain Music 204 7 Licensing Other Audio Content 204 8 Contributory Infringement 205 V CONCLUSION AND RECOMMENDATIONS 207 A Congress Should Act to Help Podcasting 207 B Action Items for Congress 207 1 Implied Nonexclusive License 207 2 Digital First Sale Doctrine 208 3 Digital Rights Management 209 4 Are Podcasts Digital Phonorecord Deliveries 209 5 Statutory License for Reproduction of Sound Recordings 209 6 Are Podcasts a Public Performance 210 C Fade Out 210 I INTRODUCTION Podcasting a method whereby individuals post audio content1 on the Internet for automatic download has recently emerged as a new technology poised to shake up the digital audio world Podcasting does not easily fit into any of the current statutory or regulatory schemes that control the broadcast of copyrighted material it is a classic example of new wine in old bottles Although podcasting s populist appeal gives it the potential to change the world of radio and music its uncertain legal status may prevent it from doing so This Article examines how podcasting comports with current copyright law Part II considers the history and technology behind podcasting Part III discusses how webcasting once threatened the radio and the music industry as podcasting is now doing and how federal regulation quashed the potential of webcasting Part IV addresses the legal issues presented by podcasting and argues that current statutes and regulations are inadequate to govern its development Part V concludes that the Copyright Act should be amended to define more clearly the rights of podcasters copyright holders and their audiences Podcasting was born into a legal regime ill equipped to govern it effectively Congress should update the law to keep pace with this new technology 1 Although the vast majority of current podcasts provide audio content a number of podcasters have started to post video content and many expect that video podcasting will soon become widespread See Pascal Pinck Podcasters Prepare to Launch Video Era REUTERS Oct 13 2005 http go reuters com newsArticle jhtml type technologyNews storyID 9918985 No 1 Will Congress Kill the Podcasting Star 163 II A PODCASTING PRIMER A Origins Podcasting allows both professional and amateur broadcasters to distribute their own audio programming over the Internet It has been described as a cross between radio blogging and TiVo 2 Using audio editing software a podcaster creates an MP3 or other audio format file containing recorded speech music or both He then uploads the file to the Internet where listeners can choose to have their podcatching software automatically download the file to their computer or portable audio player Individual podcasters have unlimited freedom to create original audio content and listeners have the freedom to listen at their leisure rewinding pausing and fast forwarding as they please Former MTV personality Adam Curry and software developer Dave Winer are considered the founding fathers of podcasting 3 Curry noticed the increasing popularity of audioblogging recording one s thoughts in an audio file and posting it on the Internet and recognized that of the absence of a straight forward means for facilitating portability was keeping Internet based audio from realizing its full potential In August 2004 he enlisted the help of Winer and other open source programmers in developing syndication software that automatically downloads a listener s preferred audio content 4 Curry s software automated the delivery of online MP3 files to portable audio players 5 Suddenly audioblogging evolved into podcasting and Curry earned the nickname the Podfather 6 The term podcasting is a portmanteau of broadcasting and iPod the name of Apple s popular audio player The word was first seen in print in a February 2004 article of The Guardian 7 Newspapers 2 See e g Byron Acohido Radio to the MP3 Degree Podcasting USA TODAY Feb 9 2005 at 1B Brian Braiker TiVo for Your iPod NEWSWEEK Dec 7 2004 http msnbc msn com id 6640519 site newsweek David Carr Big Media Wants a Piece of Your Pod N Y TIMES July 4 2005 at C1 Peter J Howe Computer Microphone iPod Make Broadcasting Personal BOSTON GLOBE Dec 20 2004 at A1 Kate Zernike Tired of TiVo Beyond Blogs Podcasts Are Here N Y TIMES Feb 19 2005 at A1 3 Cf Alex Beam Bickering Among the Pod Squad BOSTON GLOBE May 26 2005 at D1 describing the tension between Curry and Winer as each claims credit for developing podcasting 4 See Cyrus Farivar New Food for iPods Audio by Subscription N Y TIMES Oct 28 2004 at G5 Andy Goldberg The People s Radio INDEPENDENT London Dec 8 2004 at 11 5 See Clark Boyd Podcasts Bring DIY Radio to the Web BBC NEWS Dec 30 2004 http news bbc co uk 1 hi technology 4120773 stm 6 See Ken Belson An MTV Host Moves to Radio Giving Voice to Audible Blogs N Y TIMES


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