DCMA, KEXP, and Streaming Goodness

(Yes, I’m still catching up on blogging my notes from the IMA Public Media 2007 conference. Almost done. )

One of the sessions on Friday was about music rights. The panel was moderated by Bruce Warren from WXPN, and panelists included:

• Steve Altman, Senior Vice President, Business Affairs, CPB
• Neal Jackson, Vice President for Legal Affairs, NPR
• Tom Mara, Executive Director, KEXP

Not to sound like a total fanboy, but KEXP rocks. In addition to a wide variety of full-song podcasts (as opposed to 1 minute or less samples of songs), they offer a 14-day archive of everything that goes out on the air, an uncompressed stream (1.4Mbps, CD-Quality), a mobile stream (highly compressed, but I can listed from my cell phone), and real-time playlists of everything DJs play. (They don’t have pre-planned playlists, but literally generate the playlist in real time).

Mara described how the DMCA actually enables their 14-day streaming archive. This meant they had to be very specific about what you can and cannot do in the archive:

• you can’t pull up songs by artist or title. (You can review the playlist and then recall the archive by a specific date and time, but in a separate section of the site).
• You can’t rewind or fast-forward within the archive stream (no seeking),
• You can’t provide an ability to record from the stream,
• You can’t remove any digital fingerprinting
• You are required to identify in written text the title/artist,
• No skipping back and forth,
• no ability to include recording ability

In order to do full-song podcasting (live performances in studio as well as programs like music that matters), KEXP negotiates licenses directly with the performers and their labels. Mara talked about making the license agreements part of the process for producing any show - get the rights agreements upfront as part of that process, not as an afterthought or separate process.
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The remainder of the panel went into something of a deep dive into the license negotations CPB and NPR handle with “performance rights organizations” like ASCAP, BMI, and SESAC. My layman’s understand (as someone who doesn’t work in public radio) is that these licenses are negotiated nationally by CPB, paid for using CPB funds, and cover radio broadcast and internet streaming for all the radio stations affiliated with CPB.

As is often the case when a number of lawyers are in the room, lots of questions from the audience focused on what is and isn’t “ok” according to fair use, according to the licenses negotiated by CPB/NPR, and so on.

Of course, all the lawyers can honestly do is suggest that you “ask your attorney” - they’re not in a position to give legal advice without detailed discussion, understanding, and legal relationships in place. Anything they say which is construed as advice can actually get them in trouble.