Podcasting Isn't Webcasting

Brett Faucett gives a brief course, via podcasting, on the podcasting of music that requires the clearance of rights from the RIAA (rather than compliance with a Creative Commons license). Here's a short pile of links you (and I) will need to follow:

• The RIAA
• The RIAA FAQ
• SoundExchange
• SoundExchange's FAQ
• ASCAP
• BMI
• SESAC

Brett's advice is good and useful, but it also has a context: he treats podcasting as a form of webcasting. And he's not alone. To some degree, unavoidably, we all do.

And I think that's a problem, because podcasting is something very different.

It's important to remember that the RIAA, SoundExchange and the other opponents of Internet radio strangled webcasting in the cradle through the CARP (Copyright Arbitration Royalty Panel) process (which Brett calls "open", but wasn't — just ask the webcasters who couldn't afford to high fees required to participate in the process).

The CARP process winnners would, I am sure, love to impose the same regulatory regime on podcasting as they did on webcasting. And they'll succeed if we don't fight them. That fight begins inside our own minds, with the way we conceive and characterize podcasting.

To start, we need to observe that the RIAA characterizes webcasting not as a form of broadcasting, but as a "public performance". SoundExchange's rate information, derived from the CARP's ruling, pertains to "webcasters" and "simulcasters", which was what they were fearing, and hoping to rein in, from the moment the Internet became apparent to them. This fear is what gave us the DMCA in 1998 and the CARP ruling in 2001.

As we know, there is a difference in kind between podcasting and webcasting. If the CARP ruling had never happened, Internet radio would likely have taken off, and podcasting would today be a low-budget branch of that industry. But webcasting didn't take off, because the 'casting of music was essentially prohibited by a regulatory framework so complicated and potentially expensive that even the highly resourceful KPIG (the first commercial radio station on the Net) went off the webwaves. (That it's still available through a special paid subscription to Real only proves my point.) So we have podcasting.

It is critically important that we do not buy into, or adopt, the conceptual framework and language used by the recording industry, or by traditional broadcasing and its regulators (such as the FCC). That framework conceives webcasting and podcasting, as it also conceives the Net, mostly as a piping system for the distribution of the container cargo called "material" or "content".

Podcasters, along with the Netizens who built the Net's practical infrastructure, conceive the Net as a place. You go on the Net, not through it. You have sites, with addresses and locations. You go to its public spaces as you would to a public commons. That commons supports a public marketplace where everybody is fundamentally a peer — so anybody can do business, or make culture, with anybody else. Most notably, anybody can speak freely with protection by the first amendment (at least in the U.S.).

Broadcasting has never been protected by the first amendment because it's conceived both (1) as a shipping system for material, and (2) as a performance venue that so boundaryless that innocents can be offended by what they might hear there. Read the FCC's page on Obscenity, Indecency & Profanity. Note the use of the term "material". Note also the use of the term "audience". There is a line drawn between speech and performance that allows the FCC to fine for "obscenity" and "indecency" in the latter. That line has to do with the greater possibility of "exposure" one finds in performance than in speech.

Translation: we're all peers here. Our relationship, even over a podcast, is symmetrical. Personal. One-to-one, or one-with-one. Despite the numerical asymmetry between speaker and listener, the relationship is symmetrical. It is not the asymmetry of performer-to-audience.

Talk about your "content" or your "audience" and you become much more subject to regulation. You use their language, and their concepts, and you play into their hands.

There's an interesting irony to the Net: visitors to sites and listeners to podcasts have choices about what they see and hear. There are practical boundaries here. The boundaries aren't clear or perfect, but they are there. Not so with SCAN on your car radio, which might expose your kids to the word "fuck" if the FCC didn't fine broadcasters for allowing it.

The distinctions to be made here are complex and sure to be the source of argument. Meanwhile, as we begin to marshal arguments on behalf of keeping podcasting free of the FCC's and the RIAA's tentacles, I advise podcasters to speak about "listeners" rather than "audiences" and about "subjects" or "programs" rather than "content".

There is much more to say here, but I have to go cover CES and finish what I'm writing for the April issue of Linux Journal. Meanwhile, I'll point to this SuitWatch from last September, which has an abundance of links to earlier coverage of the whole CARP debacle.

Bottom line: As podcasting becomes more popular, and as it's perceived, inevitably, as a way to work around the FCC, the RIAA and the DMCA, it will be attacked. There will be efforts to bring podcasting into the regulatory regime reserved for webcasters. We need to fight that.

And that fight starts in our own minds, and in our own speech.