BMI Shaking Down Podcasters

I’m going to keep quiet about the identity of the person I talk about in this post. This info is not a secret, as he talks about it in a recent podcast but I don’t want to be the vector for him geting on radars via the googlosphere. If he chooses to out himself, so be it but I’m not going to do it. He did tell me that he didn’t mind me blogging this. We straight?

At least one podcaster has received email from BMI telling him that he owed them money by “airing” music they collect money for. This particular person is even more scrupulous than I am about avoiding the “Big Machine” music, and only plays music for which he has received explicit permission. I tend to be pretty loose if the music is available for a download currently by a first party (band or the record label). He only plays that music but only with written permission from said first party. So by podcast standards he is a Boy Scout. An Eagle Scout, even. He pushed back and thus far several months have gone by without them responding.

If I receive such a notice, here’s what I’m going to do. I will reply to them that they need to tell me the musicians and songs to which they refer. As far as I know, I’m not playing any music under their control so they need to prove it to me if they are asserting to the contrary. I’d strongly suggest that anyone that gets this letter not just fold their hand but push back. We have the “I am Spartacus” strategy on our side, so don’t make anything easy for them. It’s not impossible that I slipped and did play something under their regimen but I’m not accepting a blanket statement from them that I should pay them some money without them telling me what for. Whether podcasts are even applicable under those rules of broadcast radio is far from a settled question and will not be until someone gets sued and precedent set.

In order to be more proactive on this, I will probably stop playing music for which I don’t have explicit permissions – either directly from the band or via a Creative Commons license. If you run a small label, this might be a good time to put up an explicit statement about your stance on podcasting of your music. If you have songs for download, state if they can be played in podcasts. If not, state that. Until the legality of all this gets settled, help yourself out if you want the publicity of getting in the podosphere. I’m going to lean in the direction of those bands and labels that make it easy on me to know that I can play their music.

Update: I found this BMI search engine that will search the catalog of music they control rights for. If you want to make sure you are clear of them, getting the magic “0 hits” is a good sign. I agree with their slogan – “Virtually indispensable”. I’d amend that to include “to stay clear of us”.

15 Replies to “BMI Shaking Down Podcasters”

  1. This might be some juniors doing some rough research and not checking whether permission has been granted, or whether songs even fall under their liscence.
    Part of me hopes that you get a letter because I would like to hear BMI’s reasoning and argument over the playing of songs. Give them hell if they do.
    On this matter, how do you feel about companies like Podshow and the PMN? Obviously they have specific Podcasting licenses which permit playing songs. I vaguely remember some dislike of them but I could be wrong.

  2. One of the things that a lot of people don’t know about the PMN is that in their Terms of Use, it clearly states that it is the responsibility of the podcaster “to obtain any and all necessary licenses, rights or grants, for your podcast and any other material that is in it.” That tells me that a lot of the “Podsafe” covers and maybe even some of the music that they have from indie labels might not be as free and clear as everyone thinks.

    Of course, I’m not 100% sure, maybe someone who knows better than me can post their opinion.

  3. I feel the most cogent statement you made is supporting those labels and individuals that clearly state podcast-friendly and encouraging others we know to be transparent and take the postion instead of silent laisse flaire thingie.

  4. hugh, I agree with you totally about IODA (and I’ve tried to warn my podcaster friends, but they seem to like the Kool-Aid over there). I misread the Podshow Terms. The part that I quoted in my above comment was taken from Section 8 of the page that you gave a link to. I read that section as not covering the music, when on the re-read I see that it means the other parts of your show.

    If I read this right, they do a reverse-Slusher. Where Dave gives permission for his stuff and not the music, they give permission for the music but wash their hands of everything else. Thanks for getting me to read it again. That’s one less reason to be wary about Podshow.

  5. One thing I’ve been meaning to bring up for some time:

    In most cases, it seems as if the artists don’t have control of the copyrights. I’m not sure that they’re actually able to tell you you can play it all you want.

    The BMI shakedown stuff is despicable, but it’s sadly the way the system works at this time. It is not up to them to prove you’re violating their copyrights, and you can’t do anything to prove you’re not. Just like Gitmo.

    I recall hearing a few years back about how so many bars have had to stop having live music, because there’s just no way to prove the bands aren’t doing covers and it isn’t worth it financially for them to pay BMI.

    Same with “on hold” music and elevevator music. Pretty much the only way you can play music legally is to pay BMI’s extortion fees.

    I’d sure like to see the system change, I just highly doubt that your efforts to make them prove to you that you’re in violation will have any effect. You know, since they aren’t required to.

  6. Jer, I don’t buy that someone can say you owe them money without telling you what for. It once wasn’t true but now there is plenty of music readily available that BMI doesn’t control the rights for. The default assumption that playing music == owing them money no longer holds. If you don’t pay them, what recourse do they have other than getting litigious, in which case they will still have document infractions for the judge. If there are none, then there is no case.

  7. If you are running a website, you should have a designated agent for copyright violation notices as specified in the DMCA. For all that is bad about the DMCA, the safe harbor it provides to web publishers is quite valuable. As I understand it, once you have a designated agent, BMI or whoever *must* follow the procedures in the DMCA, which provides penalties for making false claims.

  8. well, this is lovely news. i’m going to use your “what for?” strategy if this ever happens to me. i’m usually a boy scout too but, you never know.

  9. Dave, good luck with this to all podcasters. You are correct, the BMI don’t have a blanket right to collect fees for all music playing. But when someone plays a cover to a song that is registered with BMI, BMI is set up to get paid for such “use” of their IP. It doesn’t matter if it’s a live event or a recording or a broadcast on HAM radio or public access cable.

    BMI may not have come after your podcasting buddy yet, cuz their lawyers are dotting all their t’s and crossing all their i’s before asking a bit more forcefully.

    I hope your friend hasn’t featured anyone playing covers. It doesn’t matter if it’s an indie band or uncle Joe with the kazoo. If it’s a cover of a known song from a major label, the BMI gets paid.

    But is podcasting a type of broadcasting? I notice you smell a possible legal war over whether podcasting falls into the same rules as streaming or broadcasting. See what happened to online streaming for your answer. He who has the most expensive lobbyists wins.

    Your friend would do well to notify the EFF and Creative Commons about this. Let’s see what Lessig and friends can do about it, or at least, let’s pick their brains about the issue.

    Meanwhile, let’s screw Hollywood and get making some new music they can’t collect on. And artists, please: Let’s stop making covers of old music, let’s make covers of new music.

  10. Think of BMI much like you might a Govt. agency such as IRS or EPA—they go hunting for non-compliance, even where none exists. Their common tactic is FEAR and IGNORANCE. Most people roll over on the first throw—they hope.

    I know I have played some music early in my podcast track that clearly crossed the line. If informed, I will take the show down or redact the music. Everything I have played came from a posted source by either the artist or the label, and I track WHERE I obtain such tracks.

    Now, as for PMN, there is a bit of slipperiness involved (surprise!) in their explicit and implicit statements about music posted. As Derek states their “Terms of Use” do place an onus on the podcaster to obtain clearence, however their STATED position is:
    “What is Podsafe music?

    Podsafe music is described as a work that meets all of the following conditions:

    Works submitted to the Podsafe Music Network are the property of the artist, and all rights to these works, including lyrics and music, are the property of the artist.
    AND
    All works contain no recordings, lyrics, copyrights, or other elements that are the copyright of any other artist, except under the limited provisions of the Creative Commons License Agreement http://www.creativecommons.org.
    AND
    Despite any recording contracts with RIAA, ASCAP, or BMI, or other recording industry entity, the artist retains ownership of the works, and is free to distribute, broadcast, license or sell these works at the artist’s discretion.”
    This provision, coupled with the tracking PMN does on plays seems to indicate the songs placed there ARE “Pod Safe”. I, for one wouldn’t stake my ass on it—this is Curry/Bloom covering their assets in a form of Orwellian double-speak.

    I think cover songs are pretty clear: the publishing and performance rights have strong historical precedent in law, to enforce use. Frankly, they aren’t worth the risk to play!

    As for being presented with a “bill”—that is a clearly definable legal term that demands a formal enumeration of “services or goods rendered”—not even the IRS can (legally) just TAKE without force of law.

    PREDICTION (not hard to see): 2007 will BE the year that lawsuits and regulations try to bring bloggers and podcasters into the legal purview which now binds print and mass media. Forget that most aren’t making a dime. Corporate monsters NEED to stop the hemorrhaging of assets into the viral community.

    Randy Maugans
    http://www.surfingthechaos.com

  11. Hugh, that’s interesting. What form does the designation of this agent take? Is there a specific bit of metadata in the page or a link with standard wording?

    Interesting comments, all. I agree with most, disagree a little with the details on some. There is a reason why I never play cover songs, even though the Gentle Readers have a killer on on HI HONEY that I’d love to play. If anything, this will push me further into boy scoutery – I’ve been taking MP3s available for free from a first party as fair game. I’ll probably stop that and only do those with explicit permissions – directly to me, via CC license or other proactive permission, or via a music sharing network.

    I should point out that I find this not really a bug but a feature. Imagine if podcasts could play any music without thinking about it or worrying. I fear that would quickly devolve into the familiar as everyone played Kanye West and the Who. Having to think about it, search out new musicians and find new favorites is a good thing. I’m sick to death of the familar. I don’t care if I never hear another Beach Boys song at the mall. Give me new good things and shove those ones that we’ve heard umpty zillion times.

  12. When I joined up with my employer, the first thing I did was turn off the stereo that fed a music station right into the music-on-hold input of the phone system (mumbling something like “whaddyastupid?”

    I took care of the hold music problem by locating freely licensed (or released into the public domain) personal performances of public domain classical music on the web. Burned the music to a CD, and then put the jewel case (with a printed copy of the website with the license highlighted) on top of the CD player. That way, if BMI or ASCAP ever come knocking, I can prove that my hold music is licensed.

  13. Tim, good thinking. I think Magnatune offers a deal where for a very small fee you can play their music in your business without ASCAP and BMI thugs doing their protection racket routine. “Nice place you got here. It would be a shame if this music you are playing got it shut down.”

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