NPR now podcasts many of its shows and promotes their availability constantly. And there is almost universal fascination with this new form of radio which makes it possible for anyone to be their own producer and lets people listen to their favorite shows on demand on their computer or mp3 player.

Yet NPR does not podcast any of its music based programs including those broadcast by its acclaimed music based affiliate, KCRW. Even amateur podcasters know that there is a "legal problem" with podcasting music. They are right.
The problem is that to podcast music you would need permission from each label representing each artist whose record you wish to podcast. Unlike webcasting, podcasing is not subject to the DMCA compulsory license which makes it possible to bypass the labels for permission and pay SoundExchange, a not-for-profit organization, a statutorily mandated fee. SoundExchange then turns around and pays the artists and labels on a 50-50 basis for the use of their masters.

I think the DMCA should be amended to accommodate podcasting. The DMCA was passed in 1998 -- well before podcasting was invented. Yet this new form of "Internet radio" is perfectly consistent with the spirit, if not the letter, of the Act. The DMCA permits any webcaster to use as much copyrighted music as they want so long as they pay a statutorily mandated fee and so long as they comply with certain "conditions" including that they can cannot "cause or induce" downloading. The prohibition against downloading was to prevent displacement of record sales. But podcasting, like Internet radio, does not displace record sales. Just because you download an hour long music based show, which you can listen to on demand, does not mean you won't buy an album including one of the songs in the podcast. Moreover, if the DMCA were amended to apply to podcasting, the same "performance compliment" rules applicable to webcasting would apply to podcasters, that is, you could not play more than four tracks by the same artist or three songs from the same album within a three hour period.

The good reasons to make podcasting subject to the compulsory license include:

· Prevent podcasting from going underground -- this way at least labels and artists will get paid.

· SoundExchange is already set up to collect and distribute the required statutory fees.

· Podcasting is a form of Internet radio, and the DMCA was set up to allow Internet radio to live and flourish.

If individual podcasters had to license masters from the record companies, they would have to pay someone like me a small fortune to clear the masters, and pay a much larger fortune to the labels for the right to use their masters.
The only way to let music-based podcasting live and flourish is to amend the DMCA to permit it.