Hack67.Grab Audio Legally

Hack 67. Grab Audio Legally

Can you legally grab audio from another source and use it in your podcast? Find out the dos and don'ts of copy and paste podcasting journalism.

In the text blogosphere, you copy and paste text from one source and comment on it in your own blogs. Can you do the same with audio? To understand the implications, you need to understand the issue of copyrights, and the Creative Commons license [Hack #68], which is often used to supplement copyrights. This hack applies to U.S. copyright code. Check the legal statutes for your country before using copyrighted or licensed material.

9.8.1. Caveat Emptor

Do not use the material in this hack as a substitute for legal advice specific to your situation. We did our research and what we are presenting is a good basis of understanding the law. But the law is applied on a case-by-case basis. So, getting good legal advice that is specific to your situation is critical to avoiding legal troubles and big damage bills.

9.8.2. Copyright

When a person creates a unique work of arta podcast, a book, a movie, something tangiblehe can protect that work with a copyright. A copyright owner has certain rights, and so do people that consume the copyrighted material. Sections 106 and 107 of the U.S. copyright code (http://copyright.gov/title17/92chap1.html) cover the rights of the owner and the consumer, respectively. If you are curious, section 102 covers what material can by copyrighted. This is all plain English stuff and is well worth the read.

The copyright owner's rights are straightforward. The copyright owner maintains the exclusive right to copy the work, to create derivative works, to distribute copies, and, depending on the medium, to perform the work. In the case of podcasting, we can assume it's the same as a song, which means to play the song publicly.

The really important bit is the derivative work part. If you incorporate some of someone else's podcast into your podcast, you could be creating a derivative work under the copyright codeor not; it could be fair use.

Fair use is covered by section 107 of the code. In a nutshell, it says that you can use the work if you critique it, if you comment on it, if you use it as part of a news story, if you use it as part of a teaching exercise, or if you are using it in a research capacity.

But this isn't as clear as it sounds. If you just say, "This is good," and then play an hour of another podcast, is that really criticism? To judge whether this is so, the court can take into account four things:

• The purpose and character of the use (in particular, whether you profited financially from that use)

• The work itself

• The amount of material you used

• The effect your podcast had on the marketability of the original work (in other words, did you steal customers or have an impact on the product's bottom line?)

9.8.2.1 Damages.

If you used copyrighted material and the copyright owner decides that you infringed on his copyright, you could end up in court. The law holds that the copyright owner doesn't even need to notify you first. The first notification you could get would be a notice to appear in court. Hopefully, however, you will get a letter instructing you to cease and desist, which you should take seriously.

To receive damages, the copyright owner must register the copyright with the copyright office. This is a process of proving that the copyright owner owns the material and has a valid claim to the copyright. Once that is in hand the copyright owner can claim damages on copyright infringement. Just because a work isn't a registered copyright today doesn't mean it can't be tomorrow. In fact, the law holds that the copyright owner has up to three months to register the copyright after the first transmission of the material.

9.8.2.2 Permission.

At this point, I should mention that the best way to get around all of this is simply to ask the owner for permission to use his material. If he says no, you'll be in less of a position to claim fair use by virtue of your asking permission. If you're unsure whether fair use applies and you're thinking of asking permission, it would be worth seeking legal advice.

The Recording Industry Association of America (RIAA) and the American Society of Composers, Authors and Publishers (ASCAP) are agencies that hold the copyright for music and performances and are famously vigilant in their protection of copyrights for their artists [Hack #68].

9.8.3. Creative Commons

Creative Commons (http://creativecommons.org/) is a relatively new organization that maintains a set of easy-to-use licenses for audio, video, software, text, and other material. The basic idea is to allow content producers to retain some control over the material's use in commercial or noncommercial settings, but to leave the door open for people to freely use the work and derive new works from it.

Technically, a Creative Commons license is still a copyright; it's just more lenient in form than the traditional all rights reserved licensing form.

You can select several alternatives when creating a Creative Commons license. In particular, you can disallow commercial use or derivative works. It's important to know which Creative Commons license you are dealing with and how it will affect your use of the material.

Creative Commons licenses are particularly concerned with whether the use is commercial or noncommercial. Obviously using material in a podcast for a company is commercial use. But things become less clear if you are using it for your personal podcast, particularly if you have advertisements in the podcast, or advertising on your site. If the advertising covers costs and you claim it as personal income, it's unclear whether you are a commercial entity in the Creative Commons sense. According to the Creative Commons Frequently Asked Questions (FAQ), the use is commercial if it is for "monetary compensation or financial gain." I talked with someone at Creative Commons who gave me another definition: "if you intend to profit from it," which also can help clarify the issues surrounding commercial use.

If it's unclear whether you can legally use the Creative Commons licensed material, just contact the content owner.

9.8.4. Unlicensed Material

If you find that the material you want to use is in the public domain, you can use it in your podcast as you please. You should check the ID3 tags [Hack #40] in the MP3 file, the page that references the material, as well as the site's home page and About Us page. To check even further, you can search on the terms copyright and license within the site using Google, by adding the site:domainname.com restriction to the search.

That said, the copyright law is clear that copyright information should be displayed prominently with the material (section 401 of the copyright code). It doesn't need to be in the podcast sound itself. But it should be in the tags, in the RSS feed, and on every blog page.

Most of the material I have found that is expressly unlicensed is described as such boldly on the page containing it. In fact, it's a feature of the material.

9.8.5. Avoid Libel and Slander

Another legal issue to be aware of when you are creating your podcast is libel and slander. The harsh words you say can have harsh ramifications, as your target can sue you for libel or slander. And while with a blog all they would have against you is what you wrote, with a podcast they will have your spoken word to hold against you.

Libel occurs when you write something defamatory about someone, and slander occurs when you say it. For someone to claim that you made defamatory statements, the statements cannot be the truth or be spoken as an opinion. This is why you hear a lot of talk show hosts say "in my opinion" before they say something particularly nasty.

There are process and timing issues as well. For example, you need to be notified with a request to remove or retract the offending material in a timely manner (around 20 days after the posting). An overall time limit often is imposed by a statute of limitations. This means that around a year after posting, the party might not be able to sue you at all.

All this being said, the best policy on saying something nasty is not to say it. If you have to say it, state clearly that it is your opinion, unless you know and can prove that it's absolutely true.

9.8.6. See Also

• "Use Copyrighted Music Legally" [Hack #68]