On Thursday of last week, I announced unofficial podcasts for the radio show This American Life. My podcast feed simply provided a deep link to the individual mp3 files on the TAL website, enabling listeners to podcast more than the one most recent episode allowed via the official podcast.
After the FBI raided my house last year, its fair to say that I've become a little bit more cautious. It's not to say that I'm not pursuing the same kinds of projects, it's just that I find out what my legal risks are before I go public. One interesting project that I've been working on has been stalled for the last few months, as my professor and I wait for a sign-off from both the Indiana University counsel's office, as well as a pro-bono outside counsel the nice folks at the EFF were able to put me in touch with. In that project, there are a number of uncertain legal risks, and it may upset some very powerful people - hence the caution.
Which is why, with this unofficial podcast, I made sure to check out my legal options before I put it online. Trespass to chattel - No problem. Copyright infringement - No problem. Deep linking - Probably no problem.
In the event that I got a proper takedown letter written by a lawyer, I felt that I was on really solid ground. What I did not plan for, was an emotional blackmail takedown that made me feel guilty. In hindsight, I suppose I should have predicted it - as it was the same reasonable, and non-heavy handed approach TAL took last year when two other guys setup podcasts.
The message they've given me is this: If you don't remove the podcast, we'll have to spend our limited resources (including the $20 that you donated last week) to pay lawyers to harass you.
I love This American Life. I look forward to a new episode every week, and I don't want to do anything that causes them to pull financial resources away from production.
TAL recently had a podcasting fund-drive, to pay for the $108k in yearly bandwidth costs for their approx 300,000 weekly downloads. In less than three weeks, they raised over $110k - solely by asking for money on their website, and in a request added to the weekly podcast.
Personally, I think that spending over $100k of listener donated money on bandwidth is an almost criminal waste of funds, when archive.org (who also provides free podcasting for Democracy Now) is more than willing to provide free bandwidth.
That massive waste of financial resources, is sadly, not under my control. What is under my control, on the other hand, is if TAL will have to spend several thousand dollars on legal bills - only to probably find out that everything that I've done is above board. This additional waste of resources is not something I would want to shoulder the responsibility for. In addition to wanting to do the right thing - both my girlfriend and my best friend are also fans of TAL, and I'm guessing that they'd give me a good kicking were I not to back down on this one.
Furthermore, I'll be traveling to and from the Privacy Enhancing Technologies workshop in Ottawa, Canada for the next 6 days. I'm really not comfortable with the idea that I'll be passing through US Customs + TSA with the possibility of a cease and desist sent by a US government funded group hanging over my head.
So - effective immediately, the podcast feeds come down. However, given its effectiveness, and lack of involvement of lawyers, I'm posting the letter I received from Daniel Ash at Chicago Public Radio. I hope that it will perhaps serve as an example to other, more litigation trigger happy organizations. Although, somehow I suspect that an appeal to conscience may not be as effective when the group has been voted the worst company in America.
First of all, thanks for your recent donation to support our bandwidth costs for This American Life. It helped make our online pledge drive a great success.
I am also writing because it has come to our attention that you have set up unofficial, “takedown resistant” podcasts of This American Life. We kindly request that you end this practice immediately.
On your blog, you go into impressive detail outlining the gray areas of the law in which you have ensconced your podcasts. Rather than first turning to our lawyers (at a high cost to our member-supported public radio station) to request that they look into the legality of what you’re doing, we’d like to ask nicely for your cooperation. And even if it turns out that you have found some podcasting equivalent to an off-shore tax shelter, we would still request that you stop. Here’s why:
As you mention, radio must adapt to the digital age. Our content is no longer tied to a single delivery system—that old-school box on your kitchen counter. Now, a number of much smaller, new-skool boxes enable you to take media content wherever you like and to consume it whenever you want.
Adapting to these changes is not always a smooth process. As you noted, we’ve been working hard to find the right digital delivery model for This American Life. For years, we did indeed have an exclusive contract with Audible that prevented us from offering a free podcast. Better late than never, we finally renegotiated that deal and launched a free podcast. Yes, it does have some limitations, chiefly that only one episode—our most recent broadcast—is available at any time. But once you’ve downloaded it, it’s yours to keep. And our archives, more than 300 episodes that span 13 years, are available for purchase at just $0.95 an episode.
In your blog, you suggest a different business model:
"The nicer, and smarter approach (in my humble opinion) would be to ditch the paid podcasting model, allow other organizations to host the TAL podcasts, and thus do away with that nasty bandwidth bill. In three weeks of fundraising, they were able to raise over $110k - more than enough to cover the costs of their 300,000 podcast downloads per week. If bandwidth were provided by others for free, this money could instead go towards TAL's other operating costs - and thus make up for the loss of the iTunes/audible.com revenue stream."
It’s not a bad idea—and one that we’re considering as the media industry as a whole works toward getting better metrics. We’re also watching advances in peer-to-peer technology; at some point, that might be a more plausible alternative for reliable delivery of our content. But these decisions aren’t yours to make.
We want to share This American Life with as many people as possible. But it’s also a very expensive show to produce. In order to offset our costs, we work to attract sponsorships and to develop business partners. Our current contracts are premised on a specific distribution model: namely, a weekly radio broadcast and free podcast, along with a minimally-priced back catalog. Not only do your podcasts make an end-run around this model, but they have the potential to disturb the already-muddy waters of measuring how many people download and listen to our files.
To recap, this is not a cease-and-desist kind of letter. No lawyers were consulted, and we hope there’s no need to involve them. This is simply a request. We acknowledge that our current business model isn’t perfect. But you have to admit that it’s a whole lot better (and to use your words, “nicer and smarter”) than it was 18 months ago. We want to be nice and smart in our practices, and we intend to continue in that direction as we move forward. But for now, this is where we stand, and it’s not going to change in the immediate future. We won’t ask you to stop what you’re doing for your own, personal enjoyment of the show; but hope you understand the reasoning behind our request that you take down the podcast feeds.
Thanks for your consideration.
Daniel O. Ash | Vice President | Strategic Communications | Chicago Public Radio