Adam Curry's Podshow Music Network has substantially revised its terms of use in response to concerns raised about the restrictiveness of its old terms.
Podshow Music is a clearinghouse that clears the copyrights in songs that you can use in your podcasts. It's not clear whether putting a song in a podcast is a fair use, but with Podshow, you can se sure that you have the rightsholder's temporary permission to use it.
Initially, the Podshow Music terms required you to promise that you would refrain from discussing subjects like "software piracy (warez, cracking, etc.), hacking, phreaking, emulators, ROM's, or illegal MP3 activity" or saying anything "deemed unsuitable or harmful to the reputation of PodShow or the Licensor."
That's just crazy, of course: since when does the guy who makes the record for your radio station get to tell you what kind of subject you can discuss on your show?
In response to blog posts about this, Curry posted new terms of service in September 2005 (I just found out about it now, though) that take a lot of the offensive stuff out. The new terms even let you make mashups.
There are still some problems with the new terms that would keep me from ever using Podshow music in one of my podcasts, namely:
"…the right to create a Derivative Works from each Work, provided that that the Work is not materially disparaged or materially injured in the Derivative Work"
This is a deal-breaker for me. What's material disparagement, then? How do you know in advance if your podcast is safe from claims of "material disparagement," and doesn't "material disparagement" come under the heading of criticism and parody, two things permitted under copyright law?
Either party can terminate this relationship at any time, at which point you shall no longer have access to Works. Any materials which you have created in accordance with these Terms of Use may continue to be used by persons who received them, but no further distribution of said materials can be made. Further, any materials created that violate these Terms of Use must be destroyed immediately.
What this means is that if I record an audiobook of one of my stories with some Podshow music in the beginning, I have to be prepared to take it down, forever, if Podshow and the guy who wrote the music have a falling out. If you put a week's work into a mashup with some Podshow tunes, you have to be prepared to remove that song from your portfolio, forever, if Podshow and any of the musicians in your music have a dispute. The history of TV and radio archives is full of nightmarish stories about programs that can't be shown or played anymore because they didn't get the perpetual rights to a song or some footage in the background. That's a headache no podcaster wants or needs.
You agree to indemnify and hold PodShow, its subsidiaries, affiliates, officers, agents, and other partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorney's fees, made by any third party due to or arising out of any breach of your representations and warranties set forth above.
This is pretty standard, but it's missing the key phrase, "finally sustained" as in "any finally sustained breach." Worded as it is, if Podshow gets named in a frivolous lawsuit arising from your use of Podshow music, you have to pay their attorneys' fees even if the court finds you innocent.
PodShow may modify the Terms of Use from time to time and such modification shall be effective upon posting by PodShow on the Website. You agree to be bound to any changes to this Agreement when you use the Service after any such modification is posted.
At first blush, this looks pretty straightforward, but it's tricky. The issue is that "using the Service" isn't just downloading fresh music to put in your next podcast, it's also distributing your old podcasts that contain Podshow music. Under these terms, if you keep an archive of your podcasts, you are perpetually subject ot any terms of service that Podshow or any company that acquires it decides to set down. The company could be bought out tomorrow by Wal-Mart and the terms change to "You many not use Podshow music to disparage the President, Christianity, or China" and you'd have to go back and delete all your stored podcasts that use Podshow music if you slipped in any blasphemy or any-Bush rhetoric.
The point of Podshow music is to give podcasters surety about their use of music: if you use a Podshow song, you're supposed to be safe. No one should sue you, censor you, or delete your work from the historical record. But as they stand, the Podshow Terms of Service don't accomplish this yet.
It's great to hear that Adam changed his Terms in response to criticism (though I wish someone had mentioned it to me sooner!), but it's not enough to satisfy me that I should use Podshow music in my podcasts.
No, I'm going to go on using Creative Commons licensed music (which doesn't have any of the risks mentioned above) and other music in ways that I think are consistent with fair use.
(Thanks, Tom!)
