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Eric's Podcast Rant (or, "Why PremiumCast.com's Terms of Service are frustrating")

I'm sitting here in my den, putting off going to bed, and thinking that I really should get out a podcast before we're in 2008. But Candela is literally three feet in front of my face, separated from me by only 1/2" of drywall, 3 1/2" of dead space, and another 1/2" of drywall. So, I don't think I'm going to try recording anything tonight.

But that got me thinking about podcasting, and the fact that, at least for me, right now, insert other qualifier here, it's somewhat difficult to pop out a quick podcast. There's recording, then assembling the different sweepers and phone clips, then compressing, then normalizing, then saving, then uploading to the server, then writing and publishing the blog entry to populate the RSS feed... at which point I remember that I left out "update the ID3 tags" from the process and wonder whether I should even bother.

There's got to be a better way, right?

So, that got me thinking about what used to be called GigaVox Audio Lite, which is now Podango Show Builder Lite. An awesome concept, but (at least in its GigaVox days) was a bit too limited to be useful to me. (What I need is a really basic "show logic" that says, "If there's a segment 2 present, then throw in a sweeper, then throw in segment 2". Last time I checked, if you told the assembly script to expect a "segment 2", it would error out if it wasn't present. And, if you know me, you know that nothing I do is in a perfectly regular format -- certainly not a podcast!)

So, that got me thinking about one more thing: Paul Colligan's "PremiumCast.com". This is the first functional, viable, "yes you can do this without paying a fortune to some big production company" implementation of "individualized RSS". Basically, every subscriber gets his/her own RSS feed that has a unique identifier, so you can get awesome stats and even target a particular message to a certain user.

It's a great concept!

My first concern was raised in a comment on Paul's blog. When you TOS says that you can't link to a web site... well, that's a problem in my book. Paul said that he'd look into it, but I just checked and it's still there. (You'll have to dig to find it.)

But, in that TOS report is something much worse for the typical podcaster (in my opinion). It reads (emphasis mine):


In addition to conforming to all of the GENERAL TERMS OF USE and the PUBLISHERS TERM OF USE, as explained above, you hereby certify that you have read, understand, and agree to completely conform with the following:

If you submit a podcast or videocast that contains music of any type, either as the sole content, background content, introductory content, or ending content, you certify that the following statements are true:

1. You are the legal author of the musical content OR;

1a. You have requested a Compulsory License for Making and Distributing Phonorecords, as mandated by the U.S.Copyright Office, from each copyright owner of the particular musical work.

2. You have submitted payment of royalties to all copyright holders of the particular musical work.

You agree that you will indemnify and hold PREMIUMCAST.COM AND COLLIGAN.COM, INC., its subsidiaries, affiliates, licensors, content providers, service providers, employees, agents, officers, directors, and contractors (the "Indemnified Parties") harmless from any infringement of copyright that your submission to PREMIUMCAST.COM AND COLLIGAN.COM, INC. causes.

You further agree that PREMIUMCAST.COM AND COLLIGAN.COM, INC. reserves the right to sue you for any actual damages any copyright infringement by you causes us. We also reserve the right to sue you for any punitive damages that your actions may cause to our business and reputation.


I know that nobody reads Terms of Service anymore... but there's one example of why you should!

I play music from Tim Lemmens and Elizabeth Hunnicutt in the Ericast. They're both local Christian artists; I've talked to them personally, they're very nice people, they're happy to have me play a song of theirs once in awhile. I have no "Compulsory License for Making and Distributing Phonorecords" from them, nor have I paid them royalties (even a token dollar). They're fine with that. Paul's not.

I've used Freeware loops from Flashkit.com's loops. (Ones that are genuinely marked "Freeware", which isn't the case for everything on that site.) While I could, in theory, track down Elizabeth and Tim to make them give me a form from the U.S. Copyright office, I have to take it on faith that the loops that are publicly available as Freeware are, indeed, Freeware.

And what if I get a cease-and-desist from some loop-maker (or the musician who got ripped off)? Even if I desist and/or cease right away... if some blogger gets wind of the story and writes about it... I've given Paul Colligan and his team express written (or, at least, click-through) permission to sue me for punitive damages because I made him look bad!

If you're a reasonable person, you're thinking, "Come on, Eric; Paul's not going to do that!" And I'm sure you're right; he seems like a nice guy. But, in that case, he needs to remove those kinds of things from his Terms of Service! Since "it was just boilerplace so I decided to ignore it, Your Honor" won't fly in court, I don't want to sign off on it!

So, I'm left without the ability to even play with PremiumCast.com... which sounds awesome, and I respect Paul's right to protect his company... but I think this little podcaster, for one, will have to wait until a less encumbered service comes along -- one that understands the realities of podcasting and appreciates that not all of us are living behind a corporate shield that can fend off (or at least withstand) a lawsuit.

Candela not only needs a wall to sleep behind, but a roof to sleep under.


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