Wil Wheaton: So, ASCAP to *license* podcasts? Readers respond.

Wil "now starring in CSI" Wheaton says:

Your post at Boing Boing about ASCAP licensing just made my blood boil.

Do I understand this correctly? If I love a band (let's pick The Shins, because that's what iTunes is playing right now) and want to share a great song (New Slang, for instance) to a large audience in my podcast, and talk about how much I love the album, and encourage all the listeners to go buy it . . . I have to *pay* ASCAP for the privilege? I have to *pay* them for exposing an enormous audience to the music? An enormous audience who may want to *buy the fucking record*?!

Are they out of their fucking minds? It takes me just as much time and effort to put a great song from a Comfort Stand artist into my podcast as it does to include a song from a Warner Brothers artist. Guess who gets the free airtime and publicity from me, thanks to ASCAP?

This isn't about "licensing" at all. It's about protecting the status quo (aka payola) for ASCAP and Clear Channel.

Fuck them. Fuck them in their greedy asses.

Link to Wil's blog, which includes lots of great audio content.

Update: Peter Kirn (composer/musician and contributor to Gizmodo, Macworld Mag, Keyboard Magazine, etc.) replies:

Saw your comment about podcasts — I know some of the folks at ASCAP (I don't represent them), just thought I could clarify what the license

1. Wil, you WOULDN'T pay for an individual song. ASCAP licenses are blanket licenses, and the interactive minimum pricing they've set below $300/yr. Once you have the license, ALL ASCAP music is legal to play.
(Some people might actually be making money from online distribution .
. .)

2. ASCAP pays significant royalties to the bands; this is a way for musicians to get our stuff out there and promoted and still get paid.
They're a far cry from Clear Channel — which I agree is the devil incarnate. ASCAP was founded by musicians and composers and writers and continues to answer to a board elected by the membership.

3. ASCAP licenses are voluntary, not mandatory — they're just an easy way of licensing music.

Of course, I agree that it's still not always beneficial to have to license music — which is why artists should consider a Creative Commons license and self-published CD.

To which Wil Wheaton replies:

The way I understand this license, (and a quick scan of the Technoratti cosmos to Xeni's earlier post indicates that I am not alone in this), it looks like ASCAP doesn't understand the realities of podcasting. As far as I know, podcasts aren't making podcasters rich, and there's a world of difference between someone who includes a song in a podcast, and someone who puts the .mp3 of the same song up on a website for download.

Since I am an artist myself, I always support artists making royalties off their works. We obviously have no incentive to create and release our work if nobody ever pays us for it. Large-scale broadcasters who make money from advertisers or subscribers because they play music should share those profits with the artists who created it.

I have heard from several ASCAP members and it's pretty clear that I misunderstood who ASCAP is and what they do, so I'd like to apologize for calling ASCAP "greedy" and suggesting that they get the UFIA (I reserve that for the RIAA and the record companies), and I'd like clarify my comments:

My argument with this licensing scheme is that it seems to make it cost-prohibitive for someone like me (a small-scale hobbyist) to broadcast music I love to a small audience. I understand that it's a blanket license, and I don't have to reach agreements with each artist on a per-song basis. That's great. But if I'm not making a profit from my podcast, I'm not going to pay to include someone's music in my show.
I'm not going to pay ASCAP so that I can provide publicity and exposure to an artist, and I can't imagine why artists would expect me to.

Isn't it the ultimate goal of an artist to have as many people as possible hear their music, and hopefully buy their albums and attend their concerts? Right now, Podcasters are passionate people providing all sorts of free publicity. We're not competing with any large-scale broadcasters, and we're not trying to steal music. I'm doing this as a hobby, and the more difficult organizations like ASCAP and the RIAA make it for me to just play the music, the less likely I am to jump through their hoops.

Why not work *with* Podcasters to develop an agreement? Why doesn't ASCAP create a license that allows zero revenue podcasters to play music in their shows for free? Think of it as free publicity. We sign an agreement that if we *do* make money from the podcast, we immediately are subject to the appropriate fee structure. My union, the Screen Actors Guild, has been doing something similar to this regarding low budget contracts for decades: actors can agree to work in movies for free, and if the movie is ever released and turns a profit, the producer agrees to retroactively pay the actors. Actors get to act, producers get to create, and if they make a profit from our work, we get to share in it.

I could be way off base here, but it seems to me that ASCAP is missing a golden opportunity to fully embrace podcasting. It seems like ASCAP is being pennywise but pound foolish. Thanks for the opportunity to have this dialogue.

BB reader Joe Gratz, Law Student and Copyright Geek, sez:

ASCAP members grant ASCAP the right to license their works for "non-dramatic public performance", and nothing else. And the license they offer for "pod-casting" grants only the right to make performances by way of internet transmissions.

Podcasting is not performance; it's the making of a physical copy. Podcasters know and intend that end-users will download the material to their iPods and listen to them in the car. I suspect that the inclusion of "pod-casting" in the description of the licensed activities springs from a misunderstanding of podcasting; they think it's just a transmission, like webcasting, and it isn't.

More from Joe here.

Reader Matt May adds,

It's worse than Wil thinks. The ASCAP license is only the tip of the iceberg: there are also comparable licenses for BMI and SESAC, two other performing rights organizations; mechanical rights from the Harry Fox Agency, _and_ a "master use license" to be negotiated with the record labels for each track. The latter can be under any terms the label chooses, and they can refuse you outright. I wrote the above blog article to try to make some sense of it, but in the end, it's simply nonsensical, for those people who want to be podcasters or webcasters in their free time. Those who aren't playing CC-licensed music, anyway.