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".