The copyright fairy

Derrick Oien, who's one of our chief music scouts at Ourmedia.org and a former exec at MP3.com, emails to say: "I did a KNBC TV San Diego interview about podcasting last week and a KPBS radio show with Dave Winer this week. Dave and I had a disagreement over copyright that led to the following post on User Generated Content.

At one point in the conversation I stated that if the two of us were talking, and we had a Who song playing in the background, that if we recorded that conversation and made into podcast then this would be copyright infringement unless we had the permission of the various rights holders. Dave retorted that he didn't necessarily think that is correct. ...

What I found particularly funny about this exchange is how some of the blogger intelligentsia hold themselves out as thoughtful and informed yet fail to do the simple homework when all of the source materials are freely available for them. The DMCA? You can find it online. The 2nd district court rulings in MP3.com vs RIAA? Online. 9th district Court rulings in Napster vs RIAA? Online. Kazaa, etc. etc. Sorry for the lack of links but you get my point.

The conclusion that I have come to is that many including Dave wish that the Copyright fairy would come along and change the existing body of law because its just not fair. Although I agree with many who think that it would be great if we could use samples and play mashups, and play the songs of our youth in podcasts and home videos etc. the reality today is that you can't. ...

Go read the whole thing. Derrick's absolutely right. Once again, the law has not caught up with technology or with creative culture.

That's what my book Darknet is all about.

Meantime, Wil Wheaton goes off on ASCAP and the idea that podcasters have to pay blanket license fees to include copyrighted music on amateur podcasts.

I'm with Wil. Unfortunately, the law is not.

Later: Minneapolis law student Joe Gratz has more here: ASCAP Licenses Podcasting; Doesn’t Get Podcasting.