That being said, I’m still punting on this one…like anything else, nothing’s certain until a Judge says its so, and even then, there’s always Appeals and the like…

Wasn’t Adam’s savant-attorney supposed to do some research and come back to the DSC on this issue?

(A)
the copy or phonorecord is retained and used solely by the transmitting organization that made it, and no further copies or phonorecords are reproduced from it; and
(B)
the copy or phonorecord is used solely for the transmitting organization’s own transmissions within its local service area, or for purposes of archival preservation or security; and
(C)
unless preserved exclusively for archival purposes, the copy or phonorecord is destroyed within six months from the date the transmission program was first transmitted to the public.

I take this to mean a broadcast station can make a transient recording of work, and podcast it, but can’t then go an sell it without violating copyright.

The bulk of the amendment is about what judges can and cannot do when they are asked to step in and negotiate rights and fees.

I believe you are right that the PMN license is a separate license; and that people can negotiate what rates they feel are fair; It’s the collection de facto and random rate sets I haven’t sorted yet.

http://www.copyright.gov/legislation/pl108-419.html

Further, the CRB designated SoundExchange to be the reporting and collections agency for all music played, regardless of whether or not the artist was a member of SoundExchange or the RIAA.

http://www.copyright.gov/fedreg/2005/70fr24309.html

The exemption that I read in the law, to the best of my knowledge, says that SRCOs are permitted to license out their work under other licenses to broadcasters and distribution outlets and directly negotiate any royalties to be paid, if any. The existence of such a license would override the statutory rates dictated by the CRB and SoundExchange.

The PMN License above is here:

http://music.podshow.com/music/artistTerms.htm

By my read, Section 3 of the Artist Terms would constitute a separate license and waiver of royalties for streamed audio.

Am I correct, or should I have gone to law school?

Rule 2: The freedom to contract means you can agree to just about anything between two parties and have it be enforceable, with some bright line exceptions about fraud, immorality, etc. (No paying for sexual favors and then enforcing it as a private services contract under law.)

From Intellectual Property Stephen M McJohn 2d Edition:
Copyright applies to original works of authorship as soon as they are fixed in any tangible medium of expression. This means you’ve got to write down that song, melody, phrase- not just say it aloud; record it or somehow or another memorialize it in order to have a copyright in the original work.
These rights go to the author, but it can be transferred to others. If a work is created by an employee, the author is the employer. This means if you are under contract to a record label, unless otherwise specified, you can be the employee and they own the right to your work as an author, as they are probably playing you to create this work- so the owner of a jingle is not always the creator, but often their boss or company.
The copyright holder has exclusive rights to make copies of the work, display the work publicly, adapt thew work, or perform th work publicly.
The problem arises when you start distributing rights to others- what rights are you granting to others, and which ones aren’t you granting?

So as an artist, you create a song (assuming you aren’t stealing, sampling or borrowing someone else’s lyrics or musical score) and you own it, hook line and sinker, and can do what you want to with it. It’s to whom, for how long, under what conditions, for how much money, etc. where the problem arises.

Any specific questions I can research/answer etc.?

Times like this when I wish I’d gone to law school after all

They don’t cover downloads (which most consider podcasting to be) but if a listener streams the track or the episode from my site, does it fall under Internet Radio since it’s being streamed? She couldn’t answer that, and I have found no one that can.

Alternately, does IODA’s Promonet also include the same waiver of royalty collections?

Lotsa confusion here…

Adjusting the previously uploaded track is pretty straightforward. Log into your PMN account, and next to the song in question, click on the link that says ‘update’. From there you are presented with four choices:
- sell this song
- make available for podcasters to play
- offer as free download to listeners
- remove from site

Choose the appropriate one(s) that you want, and click on Update song. It’s that easy.

Joe

Does SoundExchange cover downloads?
No. SoundExchange only covers performance rights. A download is governed by the reproduction right in sound recordings, which is not subject to the compulsory license and which must be licensed directly from the SRCO, usually the record company or artist.

If I join SoundExchange can I still negotiate a license with a webcaster if I want to?
Yes. Although membership in SoundExchange prohibits you from licensing your sound recording copyrights to another royalty collective for purposes of collecting and distributing Sections 112 and 114 statutory royalties on your behalf, your membership in SoundExchange does not in any way limit your ability to enter into direct (i.e., nonstatutory) licenses of any sound recordings that you own, whether with webcasters or other potential statutory licensees. SoundExchange simply requires that SRCOs notify it of any direct licenses entered into with statutory licensees or digital music service providers so that it can ensure that payments received from services that hold direct licenses to certain recordings are calculated correctly and allocated properly.

My read on the latter part is that if you join SoundExchange, you enter an exclusive agreement with them to collect royalties on your behalf, but if you don’t, then only the statutory regulations apply, and those can be overridden with a license from the SRCO (sound recording copyright owner), which would be the artist or label registered on the PMN.

Hey, wait a minute, you ARE a lawyer. You tell me!

The relevant pieces of law are sections 112 and 114 of the Copyright law, which are here:

http://www.copyright.gov/title17/92chap1.html#112

http://www.copyright.gov/title17/92chap1.html#114

Any other lawyers - especially copyright/IP lawyers - know whether the PMN’s license is sufficient legal ground for webcasters and Internet radio to play podsafe artists under PMN terms without having to pay a dime to the RIAA/SoundExchange?

I am not 100% convinced that the PMN license overcomes the Soundexchange problem. I don’t practice copyright law. It certainly would be nice to have an artist contact Soundexchange to get their position regarding the PMN. I certainly wouldn’t bet my license on them saying that they’re not entitled to anything - just a hunch. Remember, the PMN license has a very big and boldfaced “hold harmless” clause in it, and everyone still needs to realize that we still are in the Wild West in terms of online copyright law, and the RIAA is certainly looking for any revenue stream they can find. I know - another neurotic lawyer, but at least I’m on your side.

That being said, I love the idea. The problem that I have with most streaming and satellite radio is the lack of hosts. If you combine the excellent PMN tunes with enthusiastic hosts, you really can have something special - i.e. a return to music that matters. I would be really excited to be a part of something like that.

With the muscle the PMN has, I’m a bit surprised they haven’t really escaped the podcasting box yet, but for all the artists involved in their network, I hope they start digesting your advice.

Good stuff man.
J@iR

Whilst it never was that easy to navigate the site it’s now so full of unremoveable clutter and false entries plus other bizarre bugs that it’s become a complete 1.0 style jumble sale that makes even myspace look like a well oiled machine.

You’re post reads like a great new way to sell tickets to Disneyland in a car whose engine seized up years ago. I’d rather just walk thanks.

http://twitter.com/vaspers

To Podshow: You have ability to make something happen here for independent artists. You have the ability to make a difference in the music industry. You have the ability to create something with a podsafe radio that would make a remarkable difference to all the hardworking musicians whose music is listed on PMN. All it takes is a little time and effort on your part.

Chris Brogan asked the other day, while writing about superpowers, “If you’re not …developing the larger picture around you, what are you doing instead? Why aren’t you taking on the larger questions and taking your swing at it?”

Show us your superpowers, Podshow.

Of course, my first question will be “how many artists are going to complain if they open to Pandora?” Assumption is that the PMN was for podcasts. I would assume several, and that may have people shy away from submissions at first.

Fortunately, I believe most would LOVE the extra promotion, especially if use metrics were reported back to the PMN. The ability to get play on various streaming stations at the same time is even more enticing for artists to get on the PMN.

There really isn’t much of a difference between streaming a podcast and internet radio. Podcasts are more permanent, and I believe have a higher level of engagement with a song or artist (at least more so than streaming radio).

I personally think it’s a great idea, and I hope to see some additional conversation on it.