Law & Ethics: A Podcasting Primer

By James Yasko

This article was published in Museum News
January/February 2007.

If our museum calls our audio a “podcast,” will we find ourselves in court faster than you can download the new Bob Dylan album?

It started with a website, an MTV VJ and a dream of audio on the go. Almost three years later, podcasts—files that are downloadable to a portable MP3 player like an iPod—are everywhere. Museums, frequently the last to show up for the technology dance, have embraced podcasting for about a year now. Everything from artist interviews to curator commentaries to updates on current events in science and technology is available through museum websites and even podcast clearinghouses like iTunes and iPodder.

California’s Burlingame Museum of Pez Memorabilia, the Frist Center for Visual Arts in Nashville, the Grace Museum in Abilene, Tex., and the Museum of Modern Art in New York all launched podcasts in 2005 in quick succession. The ease, low cost and growing popularity of podcasting make it easy—particularly in such a budget-oriented field as ours. As of November the website Global Museum, a guide to museum websites and virtual exhibitions, lists 40 museum podcasters, 34 of them in the United States.

So museum content is filling the ears of the thousands of people who download podcasts every day. Listeners are happy. Museums are happy. What’s the problem?

The short answer is competition. Podcast Ready, a website promoted as “the easiest way to find, manage, and share audio and video podcasts,” offers a free program called myPodder that helps people find, organize and deliver podcasts directly to portable music players. It is basically the same service as iTunes. Taking it one step further, Podcast Ready delivers podcasts directly to a portable device whenever that device is connected to any computer. And it does not use iTunes as a go-between—a big problem for Apple.

For those who remember the rise and fall of Napster and pay attention to copyright law, free, downloadable media has been a minefield largely because the legal ramifications of downloading media have been cloudy at best. You can almost see the lawyers crouching behind every available song. Napster, a downloadable program that linked the files of all registered users, exploded on the scene in 1999 and allowed a peak 26.4 million users to share music. Users could download almost any music album or song absolutely free. Predictably this ended with the music industry shutting Napster down in September 2002.

There was a need for a legal way to obtain music cheaply. Apple Computers released iTunes, a free media player, and its 2003 version featured a Music Store where users could legally obtain music. iTunes’ Music Store answered one of the many complaints of Napster users of the music industry: Rather than being forced to pay for entire albums in order to hear one or two songs, iTunes allowed users to purchase songs for $.99 each. Updates are continually offered to include the purchase of television shows, movies and now games. The iTunes Store, as it is now called, celebrated its one billionth download in February 2006.

In June 2005 Apple released a version of iTunes that enabled users to catalogue, download and subscribe to user-produced audio called “podcasts.” Within two days of iTunes 4.9’s release, more than one million subscriptions had been submitted for the automatic download of podcasts. Podcasting had surpassed fad status.

Debuting in late 2003/early 2004 with the help of former MTV VJ Adam Curry (one of podcasting’s forefathers), podcasting allowed ordinary people to produce audio on a computer, host the podcast on their websites and distribute it to anyone who downloaded the file. The idea is that once downloaded, the audio in MP3 format can be transferred to one’s personal MP3 player, like an iPod. (Get it? iPod + broadcast = podcast.) With the success of Apple’s iPod—8.1 million iPods shipped in the third quarter of 2006 alone—podcasting promises only to grow as the technology’s popularity also grows.

Though the iPod is certainly associated with podcasting, the term is slightly misleading. One does not need an iPod to listen to podcasts. As long as the downloader has the capability to listen to an MP3 file—be it on a desktop computer or another manufacturer’s portable MP3 player—podcasting works just fine.

The iTunes Store lists a variety of podcasters, most of them free (as it is free to upload the podcast to iTunes). It is the low cost of podcasting that makes it such an attractive option, and many podcasters use their audio as a marketing tool for a nation on the go. Travel the subway in New York, the T in Boston or BART in San Francisco and you will see a number of people with headphones on, listening to devices tucked in jacket pockets or inside messenger bags. A quick look at iTunes’ top 10 podcasts at the time of writing included such diverse producers as Comedy Central, the satirical newspaper The Onion, ABC’s medical drama Grey’s Anatomy and Scientific American. Farther down the list of the moment’s top podcasts appeared content from ESPN, NPR, The Economist and something called “Ask a Ninja.” Anyone can podcast; anyone can become a podcasting star.

This variety and equal-opportunity shot at fame make podcasting popular. That and one does not need a recording studio to become famous anymore. The only technology needed is a voice recorder, audio-editing software (PC users can download the free program Audacity and editing software is standard on newer Apple computers) and a website to host your podcasts—so buddy up with your tech guys. But there have virtually always been concerns as to the copyright and trademark issues of producing this type of audio.

Has success spoiled the podcast? On Sept. 21, 2006, Apple sent a letter to Podcast Ready and Mypodder, calling on them to stop using the word “pod” in their names and software, as Apple had used the “iPod” trademark since October 2001. Apple was trying to prevent consumers from “mistakenly believing Apple is associated with [Podcast Ready’s] products and services.” Apple stated in its letter that applications have been filed for both the word “iPod” and the word “pod.” What it says—albeit indirectly—is that the trademark in question has not yet been granted to Apple.

What does the cease and desist letter mean for museums? Can museums that wish to, uh, p-dcast, employ the term, or do we all have to come up with our own word to avoid getting a letter from our friends in California? Using the word “pod” in reference to the entire process of delivering audio to subscribers is like referring to all soft drinks as Coke—and then Coca-Cola attempting to stop that.

Wired magazine columnist Eliot Van Buskirk obtained permission to post the letter Apple sent to Podcast Ready on Wired ’s “Listening Post” blog and responded to questions via e-mail. “I don’t believe that [use of the trademark] would affect [museums], unless perhaps they were to set up a mass podcast library/directory in competition with iTunes that had the word ‘pod’ in its company name, domain name or product name.”

As for calling your audio a “podcast,” Van Buskirk says, “Apple loves that people call this medium ‘podcasting’; I don’t foresee any issues unless you make an MP3 player called a BasePod, or a library called YouPodcast.”

Apple agrees . . . more or less. Apple’s public relations department would not comment on the issue as it is an ongoing legal matter, but I was referred to the letter published on Wired’s website for guidance. The letter explains that Apple “has no general objection to proper use of the descriptive term ‘podcast’ as part of a trademark for goods and services offered in the podcasting field.”

Ellen Pryor, director of communications at the Frist Center for Visual Arts, concurs. “I’ve spoken to a number of people, and what appears clear is that those of us who are podcasting for educational purposes shouldn’t worry about what’s going on with this issue. We are not podcasting for profit, and that seems to be welcomed.”

So, to museums who produce digital, downloadable audio for free via a website or iTunes: Congratulations, you are one of the few museums to embrace this new technology. And to those of you thinking about producing audio, it is still safe to call them “podcasts.” No need to schedule an interview with your legal counsel or to ask a ninja. At least not for the time being.