Our friends at Edison Research recently released a study on music discovery highlighting the ways in which people discover new music.  Among their findings was that broadcast radio, YouTube and streaming services were among the largest sources for that discovery.  That report caused one radio trade publication to suggest that podcasts, which ranked relatively low among the places where new music is discovered, might have opportunities to grow there.  What that suggestion overlooks is one of the biggest reasons that music podcasts have not taken off – rights issues.  There still is no easy way to clear the rights to major label music – so most podcasts are limited to spoken word featuring limited, directly licensed music.

That comment made us think that we should re-run an article from earlier this year, that explained music rights in podcasts.  That article was prompted by the settlement between the Radio Music License Committee and BMI over music royalties for broadcasting.  While a press release about the settlement said that the BMI license includes the use of music in podcasts, we pointed out that radio stations should not assume that means that they can start to play popular music in their podcasts without obtaining the rights to that music directly from rightsholders.  They cannot, as BMI controls only a portion of the rights necessary to use music in podcasts and, without obtaining all of the remaining rights to that music, a podcaster using the music with only a BMI license is looking for a copyright infringement claim.
Continue Reading Using Music in Podcasts – Talk to the Copyright Holders – Why You Can’t Rely on Your ASCAP, BMI, SESAC and SoundExchange Licenses

We summarized the provisions of Section 230 of the Communications Decency Act on Monday, looking at the application of the law that the President has sought to change through the Executive Order released last week.  Today, it’s time to look at what the Executive Order purports to do and what practical effects it might have on media companies, including broadcasters.  As we noted in our first article, the reach of Section 230 is broad enough that any company with an online presence where content is created and posted by someone other than the site owner is protected by Section 230 – so that would include the online properties of almost every media company has.

The Executive Order has four distinct action items directed to different parts of the government.  The first, which has perhaps received the most publicity in the broadcast world, is the President’s direction that the Department of Commerce, acting through its National Telecommunications and Information Administration (NTIA – the Executive Branch office principally responsible for telecommunications policy), file a petition for rulemaking at the FCC.  This petition would ask that the FCC review Section 230 to determine if the protections afforded by the law are really as broad as they have been interpreted by the courts.  The Executive Order suggests that the FCC should review whether the ability granted by the law for an online platform to curate content posted by others – the “Good Samaritan” provisions that we wrote about on Monday – could trigger a loss of protections from civil liability for third-party content if sites exercise the curation rights in a manner that is not deemed to be in “good faith”.  The Executive Order directs this inquiry even though the protections for hosting online content are in a separate subsection of the law from the language granting the ability to curate content, and the protections from liability for third-party content contain no good faith language.  The Order suggests that the FCC should find that there would not be “good faith” if the reasons given for the curation actions were “pretextual,” if there was no notice and right to be heard by the party whose content is curated, and if the curation is contrary to the service’s terms of use.  The Order suggests that the FCC should adopt rules to clarify these issues.
Continue Reading Looking at the President’s Executive Order on Online Media – Part 2, What Real Risk Does It Pose for Media Companies?

When the President issues an Executive Order asking for examination of Section 230 of the Communications Decency Act, which permitted the growth of so many Internet companies, broadcasters and other media companies ask what effect the action may have on their operations.  On an initial reading, the impact of the order is very uncertain, as much of it simply calls on other government agencies to review the actions of online platforms.  But, given its focus on “online platforms” subject to the immunity from liability afforded by Section 230, and given the broad reach of Section 230 protections as interpreted by the Courts to cover any website or web platform that hosts content produced by others, the ultimate implications of any change in policy affecting these protections could be profound.  A change in policy could affect not only the huge online platforms that it appears to target, but even media companies that allow public comments on their stories, contests that call for the posting of content developed by third parties to be judged for purposes of awarding prizes, or the sites of content aggregators who post content developed by others (e.g. podcast hosting platforms).

Today, we will look at what Section 230 is, and the practical implications of the loss of its protections would have for online services.  The implications include the potential for even greater censorship by these platforms of what is being posted online – seemingly the opposite of the intent of the Executive Order triggered by the perceived limitations imposed on tweets of the President and on the social media posts of other conservative commentators.   In a later post, we’ll look at some of the other provisions of the Executive Order, and the actions that it is asks other government agencies (including the FCC and the FTC) to take. 
Continue Reading The President’s Executive Order on Online Media – What Does Section 230 of the Communications Decency Act Provide?

Rights of publicity and privacy can present issues for podcasters and other media companies who feature people in their productions.  Almost two years ago, we wrote about the lawsuit brought by the surviving family members of the character who was central to the S-Town podcast. The podcast focused much of its attention on the life of this individual who was not an elected official or any other sort of public figure. As the individual died before the podcast’s release, the family sued on his behalf, arguing that the podcast violated his rights of publicity.  The lawsuit now has reportedly been settled.  That settlement suggests that we should repeat the advice that we gave when the suit was first filed, as that advice remains relevant today.

Various states grant individuals rights of publicity to exploit their names, likeness, or stories – essentially barring others from exploiting that person without his or her permission. Other state laws grant individuals a right of privacy to keep private facts private. While the details and exceptions to these rights differ from state to state, they generally do not restrict bona fide news stories about public figures or reporting on other matters that are in the public interest – and the First Amendment provides broad protections for truthful stories about public figures.  Most broadcasters and other media companies don’t routinely run up against the restrictions set out in these laws in their day-to-day coverage of news events. But the analysis may be significantly different when a podcast or other media production gets into the stories of individuals who are not public figures.
Continue Reading S-Town Podcast Lawsuit Settled – Reminder on Getting Releases from Podcast Subjects

Music licensing issues are always confusing.  At the request of streaming service provider Live365 which hosted World Audio Day as a virtual substitute for our all getting together at last month’s cancelled NAB Convention in Las Vegas, I participated in a discussion of those issues, trying to provide the basics as to who gets paid

BMI and the Radio Music License Committee announced a settlement of their rate court litigation over the royalties that commercial radio will pay for the public performance of musical compositions licensed by BMI.  While we have not yet seen the agreement, the press release already raises one issue likely to sew confusion in the broadcast industry – the extent to which the agreement allows the use of music in podcasts.  While the press release says that the BMI license includes the use of music in podcasts, radio stations should not assume that means that they can start to play popular music in their podcasts without obtaining the rights to that music directly from rightsholders.  They cannot, as BMI controls only a portion of the rights necessary to use music in podcasts and, without obtaining the remaining rights to that music, a podcaster using the music with only a BMI license is looking for a copyright infringement claim.

So why doesn’t the license from BMI fully cover the use of music in a podcast?  As we have pointed out before, a broadcaster or other media company that has performance licenses from ASCAP, BMI, SESAC and even GMR does not get the right to podcast music – nor do the SoundExchange royalty payments cover podcasts. These organizations all collect for the public performance of music. While podcasts may require a performance license (see our article here about how Alexa and other smart speakers are making the need for such licenses more apparent as more and more podcast listening is occurring through streaming rather than downloads), they also require rights to the reproduction and distribution of the copyrighted songs and the right to make derivative works – all additional rights given to copyright owners under the Copyright Act. These additional rights are not covered by the public performance licenses from ASCAP, BMI, SESAC, GMR and SoundExchange, nor are the rights to use the “sound recording” or “master” in the podcast. What is the difference between these rights?
Continue Reading BMI Settlement of Royalty Battle with RMLC to Include Music in Podcasts? – Not So Fast….

On the anniversary of the events of September 11, 2001, we should all be thankful for the work of the nation’s first responders. Broadcasters and other members of the electronic communications industries play a part in the response to any emergency – including through their participation in the Emergency Alert System (EAS). In recent weeks, the FCC has been aggressively prosecuting parties who it has found to have transmitted false or misleading EAS alerts. This was exhibited this week through the Notice of Apparent Liability issued to CBS for an altered and shortened version of the EAS tones used in the background of a “Young Sheldon” episode, leading to a $272,000 proposed fine. Consent decrees were announced two weeks ago with broadcasters and cable programmers for similar violations (see FCC notices here, here, here and here), with payments to the US Treasury reaching $395,000. These follow past cases that we have written about here, here, here, here, and here, where fines have exceeded $1 million. The CBS case raised many interesting issues that have received comment elsewhere in recent days, including the First Amendment implications of restrictions on the use of EAS tones in programming, and whether an altered tone in the background of an entertainment program, where audiences would seemingly realize there was no actual emergency, should really be the subject of an enforcement action. But the question that has not received much attention is one raised by the FCC’s Enforcement Advisory released last month addressing the improper use of EAS alert tones and the Wireless Emergency Alert tones used by wireless carriers (known as WEA alerts), and simulations of those tones. That advisory raises questions of just how far the FCC’s jurisdiction in this area goes – could it reach beyond the broadcasters and cable programmers to which it has already been applied and extend to online programming services?

This question arises because the FCC’s Enforcement Advisory addresses not only EAS tones used by broadcasters and cable systems, but also the WEA alert tones voluntarily deployed by most wireless providers. The advisory makes clear that the use of either EAS or WEA tones without a real emergency is a violation of the FCC rules. The Advisory states:

The use of simulated or actual EAS codes or the EAS or WEA Attention Signals (which are composed of two tones transmitted simultaneously), for nonauthorized purposes—such as commercial or entertainment purposes—can confuse people or lead to “alert fatigue,” whereby the public becomes desensitized to the alerts, leading people to ignore potentially life-saving warnings and information.

The FCC goes on to state:

the use of the WEA common audio attention signal, or a recording or simulation thereof, in any circumstance other than in an actual National, State or Local Area emergency, authorized test, or except as designed and used for PSAs by federal, state, local, tribal and territorial entities, is strictly prohibited.
Continue Reading How Far Does the FCC Authority Over False EAS Alerts Go? Could Online Programming be Subject to its Reach?

It was news earlier this week when a company that promotes poker was sued by one of the major record labels and publishing companies for the use of music in podcasts without permission. As we have written before (see, for instance, our articles here and here), the use of music in podcasts requires a license from the copyright holder of both the musical composition and the recorded performance of the music (usually, for popular music, a publishing company and a record label). In this case, one of the first we’ve seen against a podcaster for infringement of a copyright holder’s music rights (though we have heard of other situations where cease and desist letters were sent to podcasters, or where demand letters from copyright holders resulted in negotiated settlements), Universal Music alleges that the podcast company used its music and refused to negotiate a license despite repeated attempts by the music company to get the podcaster to do so. Thus, the lawsuit was filed.

As we have pointed out before, a broadcaster or other media company that has performance licenses from ASCAP, BMI, SESAC and even GMR does not get the right to podcast music – nor do the SoundExchange royalty payments cover podcasts. These organizations all collect for the public performance of music. While podcasts may require a performance license (see our article here about how Alexa and other smart speakers are making the need for such licenses more apparent as more and more podcast listening is occurring through streaming rather than downloads), they also require rights to reproduction and distribution of the copyrighted songs and the right to make derivative works – all rights given to copyright owners under the Copyright Act. These rights are not covered by the public performance licenses which only give the rights to make performances to the public. What is the difference between these rights?
Continue Reading Podcaster Sued for Copyright Infringement for Using Music without Permission – Remember ASCAP, BMI and SESAC Licenses Don’t Cover All the Rights Needed for Podcasting

Can retweeting or sharing someone else’s content get you into trouble? Possibly, based on news reports of a recently filed lawsuit seeking damages for defamation from a cable TV host who retweeted a twitter photo suggesting that someone has made racially derogatory comments. This case seems similar to the one about which we wrote here

At almost every broadcast conference, there is a discussion of using Alexa, Google Home and other smart speakers and digital assistants to increase the reach of broadcast radio stations. Discussions of how to get listeners to tune in and how to monetize the listeners on these new platforms are regularly included. But rarely is there a discussion of the music royalty impact of transitioning radio listeners to these digital platforms. Given these continuing discussions about smart speakers, and the apparent lack of focus on royalty issues, I thought that it was worth re-running this article that I posted earlier this year.

In the last year, the popularity of Alexa, Google Home and similar “smart speaker” devices has led to discussions at almost every broadcast conference of how radio broadcasters should embrace the technology as the new way for listeners to access radio programming in their homes. Broadcasters are urged to adopt strategies to take advantage of the technology to keep listeners listening to their radio stations through these new devices. Obviously, broadcasters want their content where the listeners are, and they have to take advantage of new platforms like the smart speaker. But in doing so, they also need to be cognizant that the technology imposes new costs on their operations – in particular increased fees payable to SoundExchange.

Never mentioned at these broadcast conferences that urge broadcasters to take advantage of these smart speakers is the fact that these speakers, when asked to play a radio station, end up playing that station’s stream, not its over-the-air signal. For the most part, these devices are not equipped with FM chips or any other technology to receive over-the-air signals. So, when you ask Alexa or Google to play your station, you are calling up a digital stream, and each digital stream gives rise to the same royalties to SoundExchange that a station pays for its webcast stream on its app or through a platform like TuneIn or the iHeartRadio. For 2018, those royalties are $.0018 per song per listener (see our article here). In other words, for each song you play, you pay SoundExchange about one-fifth of a cent for each listener who hears it. These royalties are in addition to the royalties paid to ASCAP, BMI, SESAC and, for most commercial stations, GMR.
Continue Reading Hey Alexa – Remind Me How Much You Are Increasing My SoundExchange Music Royalties