When podcasting hit the scene late in 2004, it made a big splash. Podcasters who had floated under the radar were suddenly the focus of a bevy of broadcast and print news reports.
What had been a grassroots movement by a few technology-savvy radiophiles with a "show in the barn" mentality would, many thought, be the next super trend, following in the footsteps of the blogging phenomenon.
Slow Adoption
It's three years later, and podcasting has yet to attract a major audience. What had been hailed as an evolutionary step that would democratize broadcasting is still waiting for its close-up.
Only 10 percent of online consumers in North America listen to podcasts, according to a Forrester Research report. Of that number, nearly one-third, 29 percent, are members of Generations X and Y who said they listen to a podcast at least once a week.
The slow uptake for podcasting has been both a boon and a hindrance. Operating in relative anonymity, podcasters have been able to produce podcasts pleasing to their own ear, using music and other content from local and national bands as well as various composers, authors and publishers.
Working beyond the bright glare of media attention that has sunk many peer-to-peer (P2P) file sharing networks, some podcasters may be guilty of violating copyright law in much the same manner.
Outlaw Podcasts
The major record labels and music publishers, represented by the Recording Industry Association of America 
(RIAA), control the rights to some 75 percent of commercially released music in the U.S. As the recording industry -- both labels and artists -- engage in a heated battle against illegal digital downloads, one casualty of the copyright war has been podcasting.
"A variety of reasons, including fear of piracy and the need to be paid" has led the recording industry to refuse to make deals allowing songs to be used in podcasts, according to a recently published Wall Street Journal article. Without legal access to popular music, podcasters have been shut out and unable to produce music-oriented radio programming, the article contends.
However, most podcast producers are not even aware that unless they have paid for and received permission to use copyrighted material, they are in fact operating outside the law, Susan Kevorkian, an analyst at IDC, told MacNewsWorld.
"Are you an outlaw if you don't know you're an outlaw?" Kevorkian asked. "Not necessarily. The music industry has not put the pieces in place to enable podcasters to include copyrighted music very easily in podcasts."
Lost in Space
While it is possible for individuals to obtain the proper licensing, the process could be very time-consuming "in terms of tracking down the rights holders to get those rights cleared and also in getting them to respond to you because music labels and music publishers are preoccupied with new channels of digital media distribution and the companies that are doing that, from the iTunes of the world to the satellite radio broadcasters of the world, so an individual can very quickly get lost in the shuffle," she stated.
The music industry in general, Kevorkian said, has been focused on fighting music piracy en masse. Putting the pieces into place for podcasters has not been a priority. Nor has it been a priority to go after individuals who use copyrighted content in their podcasts.
"It is possible that because it is not necessarily a high priority for the music industry that an individual using copyrighted music in his or her podcast could do so for some time until it becomes a priority for the music industry to go after them," she said.
Low on the Totem Pole
Compared to blogs, podcasting is a niche activity, Brian Haven, an analyst at Forrester Research, told MacNewsWorld. It is easy for people to read blogs and other written content online, he explained. However, it is much more difficult for people to focus and do other things while listening to a podcast.
"Oftentimes the podcast will end up competing for time when [a person] might have been listening to music," Haven stated. "If [they] go to the gym or commuting to work then those are probably the most common times [they] might listen to it, but those are also the prime times to listen to music. So it's got a lot of competition."
Nearly anyone can type out a blog, Haven continued, but producing a podcast requires a greater level of skill. "People can write decently enough that other people will want to read it. Once you get into broadcasting, which is what podcasting is, it becomes an entirely different game. People go to school to study journalism and communications and there is a significant change in the quality that doesn't come across in blog content, but once you start speaking in a recorded form there is a whole different skill in that."
Musicians and record labels are more concerned with curbing piracy and maintaining control over the distribution of their content than on seeking out and prosecuting podcasters.
"The music industry is fighting a battle on multiple fronts," Kevorkian said. "That's not to say that podcasting is not a concern for them -- it is. But they perceive the net affect of music being distributed across the spectrum of podcasts to a whole spectrum of users to be negligible in comparison to an individual buying new CDs, making thousands of copies it and then sells them."
"So it's piracy for profit versus accidental piracy or uninformed piracy," she added.
The iTunes Underground
There are more than 80,000 podcasts on the iTunes Music Store on any given day, Simon Pope, an Apple (Nasdaq: AAPL) spokesperson, told MacNewsWorld. Submissions are screened for profanity or hateful speech, but the large number of podcasts, many of which are updated daily, make it impossible to verify whether podcasters have obtained the necessary licenses for content within their broadcasts.
"Because iTunes is just a host for this content, the responsibility to assure that [they] comply with copyright law is on the creator," Pope said. "It is something that we take incredibly seriously. So there is a feedback forum to report issues of unauthorized copyright material. Copyright holders can also talk to iTunes and say 'I think this breaches my copyright. I'd like to have that removed until a proper investigation can be held.'"
"We are always supportive of new and exciting ways for fans to discover and experience music," stated the RIAA. "Podcasters, like the users of any other sound recordings, must obtain the appropriate licenses from the copyright owners, or their designees.
"Since podcasting came along, our companies have been trying to figure out how to make it into a win-win-win situation -- good for podcasters, good for creators and good for consumers. The initial deals we're now seeing are the product of that thinking," the association said.
Right Side of the Law
Navigating the tricky shores of copyright law has tested the skills of corporate lawyers for decades. Podcasts fall into a unique category, said Jerry Bailey, director of media relations at Broadcast Music Incorporated (BMI), a performing right organization for songwriters, composer and music publishers.
Under copyright law, the songwriter has four exclusive rights, three of which come into play for podcasts, Bailey told MacNewsWorld: the right of public performance 
, the right of mechanical reproduction and the right to the sound recording.
Mechanical reproduction rights are granted to those wishing to distribute a song, whether as sheet music, a CD or a download. Another right is the exclusive right to public performance. That means that every time a song is played or transmitted over the radio, television or Internet, another license is needed.
"If you're playing a song on the radio or television, bar or restaurant, airport or hotel, we grant you the right of public performance," Bailey said.
"When you distribute a podcast you are distributing music," Bailey stated. "Then you need a mechanical license from the music publisher. "
If a podcaster includes a sound recording of a specific song from a band, then the podcast producer also needs to obtain rights to that specific recording from the RIAA. "Basically, if you take a sound recording from a record company, you have become a record distributer," he said.
BMI and the American Society of Composers, Authors & Publishers (ASCAP) both grant licenses specifically for podcasts. The two organizations license roughly 95 percent of music created in the U.S.
Podcasters seeking an annual license through BMI or ASCAP pay the greater of either a revenue-based calculation or an activity-based calculation. BMI also provides a Klik-Thru Internet licensing wizard for those who expect to pay less than US$1,000 for annual rights to songs. ASCAP also offers an online tool, RateCalc, for estimating annual license fees.
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