For every emerging entertainment medium a cadre of slimeballs comes along trying to exploit the entertainers and make money on the backs of their efforts. Podcasting isn’t truly a new medium considering audio downloads have been around for more than a decade (longer if you count MIDI and MOD files), but the RSS distribution mechanism makes it easy for the entertainers to publish and even easier for the shysters to exploit their labors. Just because I make something freely available for people to listen to doesn’t mean I’m offering free license for someone else to sell my product.
This was demonstrated to its fullest when someone on a podcasting discussion list linked to a new search engine for podcasts. The search engine in question offered results in the form of a link to a Windows Media .ASX wrapper file with an advertisement displayed in the file’s HTML layer in the software player persisting throughout playback of the stream. The company did not get permission from the podcasters to do this and several people, including myself, loudly voiced opposition to the practice. They have since changed their tactics, instead displaying the text from the originating RSS feed in the wrapper.
If this were truly an isolated incident of someone in need of an education about what constitutes acceptable use of other people’s copyrighted content the story would be over. If a similar service were offering some form of excerpting in an effort to point out cool podcasts, it might even be argued that no rights were violated on grouds of fair use. Instead, it’s probably the beginning of what could possibly become a huge headache for content owners who otherwise just want listeners to tune in.
It’s highly conceivable someone will take the idea of wrapping advertising around other people’s audio shows and run with it. Instead of a random affiliate advertisement displayed in the Windows Media Player as you listen to content being pulled from another server, it’s conceivable for someone to start a streaming service that directly sells advertisements based on the shows they know are distributed via RSS.
For instance, the popular Autoblog podcast is available for anyone to subscribe to and it covers a topic attractive to lots of big name advertisers. In theory, I could set up a site offering a stream of the Autoblog podcast, sell graphic and text advertising that displays in the Windows Media Player while someone listens to the show on their PC. Conceivably I could sell audio commercials to run at the beginning and end of the stream too. All without the permission of Weblogs, Inc (the company behind Autoblog). Autoblog is already sponsored by Volvo, so it’s quite evident landing a big name sponsor for my little foray wouldn’t be out of the question.
Would I be violating rights owned by Weblogs, Inc by selling graphical and audio ads wrapped around their stream? Without a contract with Weblogs, Inc, yes I would. They’d need to catch me first, which may or may not be likely considering the existing batch of podcasting client software applications are notorious for crapping out mid-download and starting over, resulting in numerous file requests from the same domain, but it’s likely someone would call my bluff before I got too far into the business. Note to would be copyright thieves: Start your service with podcasts owned by individuals; they don’t have deep pockets to wage a legal battle against you and they just might be naive enough to let you cut them in for say 3-5% of the take.
Combating intellectual property theft for economic gain doesn’t come without cost. In my example Weblogs, Inc could attempt to thwart my efforts by first blocking the IP address I use to pull the stream (which is a simple matter even for non-geeks if you have a Web admin tool like Cpanel installed on your server). In response, I step it up a notch and never use the same IP address more than once every 500 stream requests, which is very possible and likely to avoid drawing attention to my actions. At the same time, they hire a lawyer to try and get me shut down through the legal system, which costs them money in addition to the time spent tracking down the violating IP addresses. The game of cat-and-mouse continues as I start subscribing to their feed, downloading the file, and uploading it to a hosting provider in a country that doesn’t respect United States copyright and distribution rights. I’m now wrapping the Autoblog file from my own server, which means IP blocking can’t work. Now, they are forced to decide whether what’s at stake is worth pursuing because there’s no direct access to blocking me from serving my stream without completely shutting down their free podcast.
Welcome to the world of the media distribution companies. This is exactly the kind of pirating the music and video industries have been forced to deal with for years. While there is certainly concern and attention being directed at music and video consumers who are sharing files for free on the p2p systems, there’s an additional component at work causing the distributors massive amounts of financial grief. The same files your neighbor is sharing with your cousin in Florida are easily picked up by a pirate and sold for financial gain anywhere in the world. DRM starts looking like a necessary evil for content creators to thrive, even as something that’s merely a hobby.
Podcasts are generally given away for free whether they contain advertising or not, so concern over people selling your podcast on a per listen basis is minimal. At the moment, there are probably only a handful of podcasts with a large enough audience to attract the level of attention I describe, but who doesn’t aspire to having tons of podcast listeners? When you hit a critical mass, you will become a target for exploitation.
While I’m not generally an advocate of DRM at the consumer level, because it currently creates more hassle for honest people without stopping the true pirates from prevailing, some kind of lockdown to prevent those who might be inclined to exploit that which is freely given by others may be a necessary reality as podcasting grows in popularity. The complicated part is figuring out a system that is restrictive enough to prevent wholesale exploitation without impeding regular folks playing your podcast anywhere they want once they’ve downloaded. Complicating the system is counterintuitive to the idea of getting a big audience.
Ideally we need a form of DRM definable with terms like play anywhere except inside a .ASX file. Or maybe complicating things a bit further, don’t stream if the IP address of the server originating the ASX file and the server where the audio file originate don’t match. Another more precise limitation would allow a certain number of streams per day from a specific machine ID. In the last case, 16 streams per day of a 1 hour podcast would allow the average person who sleeps 8 hours a day to listen to said 1 hour podcast in full the maximum number of waking hours in their day.
As far as I know, this isn’t currently addressed by DRM solutions. There are plenty of rules about only playing files on certain machines or on a limited number of machines. There are rules about only allowing a file to play a certain number of times but not whether those times are as a stream or in some other format. At this point the whole issue of combating streaming starts to look ugly because DRM is complicated. Existing systems require a validation server to verify rights against before playback, which isn’t convenient for the guy making podcasts in his basement. Further hassle is added by the small number of devices capable of playing back DRM wrapped content from any provider and an unwillingness on the part of Apple to open the Fairplay DRM implementation they use in the iTunes Music Store and the entire audience is marginalized.
At the end of the day, if a podcast gets popular, the creator should plan on getting screwed by someone because there is no system that allows them to define their terms for audio consumption and still continue to reach the core audience. In that light, podcasting doesn’t look so new.