Welcome to Punk News Weekly. I'm joined today by a friend actually, I met him in the bar at Podcast Movement in L.A. His name is Gordon Firemark. He's known as the podcast lawyer. Gordon, hello, how are you? Hi, Sam. It's great to be here. I'm doing well, thanks. Good. Now, how did you get that wonderful moniker of the podcast Lawyer? Well, I'll tell you, I was a lawyer first, and as I was getting into marketing my practice and being a bit of a geek, I was following Leo Laporte when he left television and went and started the Twit Network. And I thought, That's cool, maybe that's something I can do. And having had a background as a sound engineer before I became a lawyer, I thought, okay, I can make this work. Being a geek, connect the dots. And this is in the early days when you so hand coded your RSS feeds. And then I started my own podcast after having been a guest on a couple of other shows, and I at that time I went sort of looking for the legal guidance for podcasters being an entertainment lawyer. I kind of knew the basic framework, but I wanted to identify the nuance and there were no resources. So I sat down and I wrote a book called the Podcast Blog in New Media Producers Legal Survival Guide. And when you write a book that makes you the expert, certainly more than anybody who hasn't written a book. So that kind of grew. And I became known and speaking at conferences and events, and a few people started introducing me that way as the podcast lawyer, I embraced it and latched on to it and decided, okay, this is my brand. And fortunately I'm grateful. I've been very successful marketing with that brand. It's a very good one. Now why do we need a podcast lawyer? I mean, clearly I put out a podcast. I have copyright as a given, is not it? Yeah, What we forget is that making podcasts is creating media content, and there are rules and laws around how we go about doing that. And it's not just copyright, although that is a big factor. What can you use? How do you protect what you've created? All of those kinds of things. But there's also podcast titles as brands. And so we look into trademark registration and protection, but also content creators sometimes talk about other people. And if you say something that's false and it hurts their reputation, now you've got a possible defamation libel case or something. We have invasions of privacy. We have deals between and among the members of a podcast team. Let's face it, marriage don't always work and neither do business partnerships in relationships. So a lot of what I do is help clients to either structure those relationships at the beginning and what I can or casually term a podcast prenup format, or help them negotiate the outcome when things start to go wrong and things like that. So it's like any business, there is a need for lawyers for some and not for all. I think that this is an area where the barriers to entry are so low that it's easy for people to come in and not having ever given any thought to these legal frameworks. And so I view part of my job as educating folks. I think, in the world of startups, when I was writing for TechCrunch and we used to have, you know, some young 20 year old, I've got a great idea, then goes, I'm going to start a business, gets that $99 online pack. Suddenly they're a limited company and then they're doing all the things and then suddenly the IRS or the taxman goes, Oh, by the way, you owe me some money. Well, I have no idea what you're doing. And by the way, where's your copyright laws and where's your time to conditions and all these things? And so I do see the similar parallels with podcasting where people just, oh, I just need a microphone and I'll chat away and I'm off and running. So given those are the type of things that you advise clients I want to they get you on because Microsoft CEO of A.I. has been causing a few ructions in the web. He's caused some waves by saying that, oh, everything on the internet is fair. Use. Now, first of all, can you define what is a fair use? And then secondly, is he right? Fair use is a defense to U.S. Copyright infringement cases. It's specifically U.S. law because we have our First Amendment guarantees of freedom of speech and press. And what the courts over the first half of the 20th century had to do was sort of grapple with this. Here we have a law that says you can't copy that stuff, you can't use it. I mean, making stuff and another constitutional provision that says Congress shall make no law abridging the freedom of speech and the press. So the courts had to wrestle with this, and they came up with this sort of complicated multi-factor balancing test that has to be applied to each alleged infringement to figure out is it fair use? And those four factors look at the purpose and character of the allegedly infringing work, the nature of the original, and is there a transformation happening and not just transformation in terms of changing the work, but changing the meaning and purpose of the work? The third factor is the amount and substantiality of the portion that's been taken. And then the fourth factor has to do with the market impact or value impact of the infringement. So we look at these four factors in each individual case and so balance it out. We look at things like for that initial one, the nature, the purpose and character we look at is it an educational use or criticism and commentary? We value journalism over commerce. So if you're using a piece of material in an ad, it would be a different treatment than if you were using it to to comment on the quality of the thing or whatever. So that's the kind of analysis that we value it more as speech or do we value it more as property? And so fair use, it's this complicated thing. You don't get to just claim its fair use and use things without permission. And this fellow from Microsoft, I find it hard to believe that he is as willfully ignorant as he seems in that statement that you referred to. But I read it, and it's just preposterous for him to suggest that by posting something on the Web or on the Internet, you've created a social contract that says, go ahead, use my stuff. If that was the case, then every single piece of Microsoft software that I could possibly find on the Web, what you just told me, I can use it freely. I don't have to pay for it. But here's the other side of that coin then. So copyright only gives me ownership of the content. But if I don't have a license that says Here's what you can do with my content, Is the default license fair use? As in Yeah, take it, use it, do what you like with it. Because I haven't specifically set a permissioned license to what you can do. Now. Quite the contrary. What copyright law says, and this is universally true across all the countries that have signed on to the international treaty Is that the author of the work or the owner, if they've sold it, has the exclusive rights to do certain things, to make copies, distribute them, perform, display or make derivative works. So unless someone who wants to use the material has been given permission, typically in the form of a license agreement, then that what they have is no right whatsoever to do these things unless it's fair use. So fair use becomes the exception or defense. But that's tricky and risky to rely on. Fair use in the absence of some clear guidance. So if I wanted to take a clip of your podcast and use it in Partners News Weekly, under fair use, probably two or 3 minutes would seem good. Right now. It seems that that's okay. But if I wanted to take the whole of your podcast and call it podcast weekly and well, say hi, welcome to Pod News Weekly. And now for an interview with Gordon, Mark and his guest and then at the end, go Well, thanks for listening to News Weekly. Now that clearly is not fair use, right? Well, right. And in fact, the two or 3 minutes that you referenced, again, no rule of thumb, because if my podcast is only 4 minutes long now, you've taken 75% of it, Right? So now again, but there are scenarios where you could use the whole thing and it would be fair use because what you're doing is the kind of thing that we as a society value the social commentary criticism, the journalism that you guys do at partners. But if it was a pure entertainment podcast that did the exact same clip, it might be treated differently. So that's why this is tricky and risky is that each use has to be analyzed standing on its own. And yeah, it's just too complicated to boil down to a single sentence guideline. Okay. So first and foremost, although every podcast is given by default, a copyright should the podcast implicitly have within their RSS feed a copyright notice? It's a good idea. Implicitly, actually, I would say explicitly they should post a copyright notice on on their websites on the RSS feed. Ideally in the audio or the video of the program, although that is, I would suggest that's a practice that's observed in the breach more often than adherence. But yeah, I should say this episode is copyrighted by so-and-so and published in 1991, and I'm on it in 2024, and I'm saying they. Don't. Anyway. Copyright 2024 by Gordon Fire. Mark That's all you have to sort of say. And that notice it has small legal significance, but it's just the the way that people know who to reach out to and find. Okay, should they also have a podcast license then attached to their RSS feed? Well, I think that's a matter of choice for a creator of any kind of content, whether it's a podcast or a song or a photograph. If you're okay with people using your content, you can publish it under one of many different kinds of licenses that allow for use under certain circumstances. That's what a license is. It sets out the conditions under which your work could be used, by whom and so on. So there's the Creative Commons license. There are a few other model licenses out there, and a podcast license is something that we desperately need so that podcasters can opt into using a piece of music or something like that in a way that isn't such an administrative burden. I mean, as a lawyer, one of the things that people sometimes come to me for is help me get a license to use the first eight bars of AC DC's Back in Black. That's the classic, right. And I end up having to go and reach out to a publisher and a record company and sometimes a performing rights organization and ask for permission that they have to go to the owners. And it's this whole complicated, time consuming thing. And by then the episodes already ready to go and the podcaster moves on and uses something else. So having a a default or a standardized podcast license makes a lot of sense. Yeah, I've got a great story. Sting was on the Howard Stern Show the other day and Howard said, Is it true Kanye West pays you $2,000 a day? And Sting said, Yes, he pays me $2,000 a day. And he said, How come? He said, Well, I was at an Elton John party. And Elton John told me that Kanye West had taken the whole of the underlying track of Want to Sting songs without asking Sting. So Sting's lawyers basically went in and got millions from Kanye West. And basically it's calculated out for perpetuity $2,000 a day because he never asked for a license to use his music. Well, I mean, that is the power of copyright law and the danger of copyright law, frankly, depending on which side you're on. Yeah. Now, one of the things that podcasting studio has been working on is a piece of technology to enable independent music artists to be able to give their music a license and to allow that to be used within another podcast. Now, Adam Curry, the inventor of podcasting, was famously an MTV jock, and he has forever in a day 20 years probably or more, been wanting to create or recreate a music show. And Spotify, in its wisdom, has started to not pay independent music artists anything of any significance. And they're all looking around and they all work. Tell you about a year ago that actually RSS is a great means for distribution of music. Just as is podcasts where you have cover art. That's the music art, and then where you have episodes, you have singles that aggregate into an album. So it all worked out very well, but there was a whole piece of technology missing in, well, how do we remunerate them? And so some very clever people in the podcasting tutor arena came up with a technological wallet switching and before we started this podcast gave you a quick view of it. And the idea is that somebody is streaming micropayments to a podcast and then the wallet is taking that from my wallet to Adam Curry's wallet in this case as an example. And then since he plays the music, it goes from my wallet to the music artist for the duration of the track and then switches back to Adam when the track finishes. And that's a lovely thing to do. And that required a new podcast license for music. And I think I sent you that a little while back. I mean, again, I'm not asking for your legal final stamp of approval on it, but again, I think that's the sort of thing that we need to see if we're going to be able to use independent music artists giving permission not only copyright but license to play. Agreed. And what you showed me, it looks like a fantastic approach to this. The key word in what you just said was independent music artists, because it's going to take them opting in to this kind of a system to be willing to license on terms that allow for this micropayment wallet switching, kind of revenue sharing kind of thing. And I think it's a wonderful idea if we can get enough artists to opt in and we can get enough listeners to opt into paying through their wallet to these podcast hosts, the real challenge is that most creators that want to use a piece of music, they have a piece of music in mind, and it's not that little independent artist from down the road. It's Madonna or Kanye West, Sting And until the big record labels and the big music publishing companies that really control the copyrights and ownership of those things, until those folks see the light and opt in to something like this, we're creating a separate ecosystem for the independent music world, which is fine and it's a good idea. But the real trick will be getting the uptake on both sides of the payment equation to opt in. Yeah, I mean, I used to own a radio station and we had a purist license, a performing rights license. Of course, that was great. When we went over to eBay or we went over in the UK geographic space, no problem. Broadcast where you have a license, young sir. But as soon as we stuck it onto Spotify or Facebook as a podcast, down would come the license police and go, Wow, you can't have that. And there was no way to get a global license of any sort for us to do that. So we were always having to remove it from a outside UK sphere. And even in the UK Facebook like now you can't buy anything. Sony BMG are coming after you. Is there ever a scenario you can see where those licenses that you buy will also cover web distribution so that we don't have to use independent music, but we could use Sting and AC? DC Well, right now the only approach is the one I described where you literally contacting all of the copyright holders and negotiating terms of a license agreement. Now the trouble is and the reason it's it's a challenge internationally is that some of these copyright holders only hold the copyright for the particular territory that they're in. So then you then have to essentially navigate the worldwide publishing for these things. And so honestly, if I'm dealing with Warner Music, Warner Chappell music here in the U.S., they've got divisions in other countries and they've internally sort of agreed not to step on each other's toes. So and let's face it, there are people whose jobs sort of depend on them having a sphere of influence. So it's going to be hard to get all of those folks to agree. I will do it on these terms or these circumstances. And sometimes the artists have something to say about it. Well, I don't like the government of this country, so we're not letting my music be used there and all those kinds of crazy things. But theoretically, it's possible to negotiate an international, worldwide license, all media, all rights, so on. And in fact, that's what we often do when we're negotiating to release a film. For example, I want to use a piece of music and film it. It would be untenable to say, but you have to go negotiate with the owners in Belgium and Morocco and one country at a time. So we do negotiate. Actually, oftentimes we lawyers will use terms like throughout the known universe in perpetuity. Let's try to be as broad. What about other planes of existence, Right. Yes. Okay. Now, one of the other things I'm very keen to try and do and going back to fair use and going back to clipping other people's content, I've developed a piece of technology and it's very embryonic right now. And again, I showed you it briefly, which is the idea of creating clips within the app platform and then allowing those to be used in the same wallet, switching technology in place of music. So I might have a podcast with James put his weekly and we've heard a great interview that you've just done and we want to clip that whole interview into our show. Now, today we might just be polite and say, Hey, Gordon, by the way, we're just going to use you mind. And you might go, Yeah, I'm happy to do that. Oh, no. But if we had to do that thousands and thousands of times, that could become very laborious. So having a podcast license where you say, Yep, I'm happy with my podcast to have content reused for non-commercial use, or I'm happy for commercial use or shared attribution or whatever it may be. Yeah, that's fine. So then we could see what your license is. We could take the interview and reuse and pay you micropayments from the listener for reusing your clips. He might get 90% of all the micropayments that we're receiving. We might keep 10%. That's the model I'm working to which would replace, I guess, fair use with a proper monetization model. And yeah. Yeah, I don't know that it needs to replace fair use. I mean, fair use is still a you know, if you have a genuine fair use, you don't have to get a license. That's the purpose of this exception or defense. But it would create a system where response people, creators who want to do right by the owners of content could certainly do so even. Yes, I know it's fair use, but I'd like to pay you right. That's one scenario. And the other is maybe it's not fair use. So I know I need to pay. So let's get it signed up this way. Yeah, I think it's a great idea and I don't think that Fair Use and the podcast license need to exist separately as either they can coexist. And will we Lawyers like the idea that we will always have this question of is that fair use because it gives us something to do. So let's go back full circle. We talked about the Microsoft CEO saying that everything on the Internet is fair use. Yeah, you must now have a lot of people coming to you saying, Gord, how can I protect my podcast from Microsoft or Openai or Google coming to use my content as a training piece of audio? Yeah. So are you moving into that sphere of advice now where you're telling people what they could do, what their rights are, I guess? Well. Yes and no. My thinking is that because of the way copyright law works, it's it's exclusive, right? That belongs to the author. We don't have to take any affirmative step to to protect against these things. It's incumbent on the users to come and ask for the permission. If we don't have a publicly available license that's out there for people to look at. That said, I think there are a number of technological solutions that should be implemented. Some have been invented and some haven't yet, but one of them is as simple as the robots.txt text file that is on your web server that says to the crawlers of the world, don't index this page, don't look at this or don't access this page. The trouble is, that's that social contract that he's talking about and it only works if people adhere to the protocol. And there's no law that says you must follow robots text instructions. So that's one I think that some other technological models will be coming very shortly that allow you to turn on don't use this to train a AI flag, for example, or a no copying flag. Shouldn't have to do that. No copying is the rule. But there it is. It wouldn't hurt, I think, to just put on your website header or footer or somewhere. This content is protected. All rights reserved. Not available for AI. At least you can say you warned them. Whether that has any legal effect is hard to say. And there's countless lost. I think it's about 40 lawsuits going on against the AI companies currently that are asking this question. Is it fair use or not? When we use this stuff to train? Because the AI companies take the view that this is not copying, all we're doing is really just consuming. It wants to learn, but I think a lot of that depends on how the AI training technology really works and maybe a little adjustment of the definition of what's a copy, what's a performance, those kinds of things. So last couple of questions. And so in terms of blocking the bots with robot text, I think today Cloudflare just announced that they for free are allowing any Cloudflare clients to turn on a block, a bot capability. So I'm going to try that later and see what happens. But one of the other areas that we're now seeing new companies taking text from companies, so sources of websites and turning those into podcasts and putting A.I. voices with them. So two parts. Question one, do we have to ask permission? So let's say I wanted to go to TechCrunch and Engadget and The Verge, and I wanted to say give me everything about Google, right? And then the AI finds everything about Google and then turns into a podcast for me with some clever AI voices available and even maybe transcribes it to multiple languages because that's easy to do. Now, where's the legal precedent? I clearly shouldn't be allowed to take that original content, should I? That's my view, yes. I mean, there is some case law that suggests that capturing bits of information from sources on the web may be that fair use, that we talk about it maybe permissible just sort of under a sort of a social contract, kind of a principle. But if that resulting podcast that you described is published, you have now used the AI technology to create a new work, a derivative work based on those other things that you've incorporated. And that's again, the exclusive purview of a copyright owner. So it should be prevented. Well, it is prevented by the law and should be prevented by technology as well. And yeah, unfortunately, that I mean, I love the idea of that. I love being able to just do it for my own consumption. Here are the five websites I read each day. Give me a morning summary or something like that. That's great because it's just me and technically it's probably still an infringement, but I'm one consumer. There's no real harm. As soon as it becomes more widely public, that is a harm. And if you get millions of consumers doing the same thing where we're taking away the ad views on those websites. So that's the last question. If the audio content is created using A.I., should we legally be bound to flag it as A.I. so that we're not misconstruing or creating false flags to listeners who might not be able to tell the difference between content that is human generated and content that is air generated? That is a great question, and I think morally the answer is yes. I think we owe it to our audiences to be transparent about what they're hearing, what they're consuming, where it's coming from. Full context. If we were selling a product using A.I. generated stuff, we would have here in the U.S. it's the FTC. I forget the name of the agency in the UK, but all over the world there are regulations requiring transparency and that you not mislead your audience. Now, is this a real voice or a human voice or a generated computer voice? I don't know whether that's misleading or not, but that's the basic rule. We need to give some disclosures and honestly, I think it's just the right thing to do from a legal standpoint. Maybe there's a little wiggle room on that. Okay. So in summary, yes, you have copyright. You should have a podcast license. Really fair use is fair use. No, Microsoft, you can't scrape the whole web for your trading. And we should be transparent in our labeling. That's a good summary. I'd say. So yeah. On the podcast license, my one caveat would be if you want to, if you don't want anybody to use your stuff, then don't put a license. Gordon Fire Mark the podcast Lawyer Thank you so much. Now if people want to find you, where would they go? Well, Sam, I'm blessed with a memorable name that's easy to find, and there are too many of us out there. So Gordon Fire Markham is probably the hub of things or just fire Markham for the law firm. And you can find me on YouTube. And most of the social media channels. Gee, Fire Mark is the handle. They're amazing. Thanks, Gordon. Thank you. It's been great.