Podcasting Leaves the Copyright Garden of Eden

For fifteen years — until last week — podcasting was a relatively untouched and unspoiled environment regarding copyright issues. Apart from clearing rights for music used within podcasts, no one in podcasting thought much about copyright. If you produced a podcast, you paid a distributor like Libsyn or Blubrry to host it and get it listed on as many directories as possible, so that it would be available on Apple Podcasts, Spotify, Stitcher, Google Podcasts, Podcast Addict, RadioPublic, and all the other myriad podcast apps. Distributing your podcast as widely as possible was the objective.

The changes started slowly and tentatively. Stitcher and then Spotify began developing or acquiring their own podcasts, which they would make available only on their own apps, or hold them back for a time before distributing them widely.

But last week, the startup Luminary launched, and in doing so, set potentially much bigger changes into motion. Luminary, which raised $100 million in funding and aims to be “Netflix for podcasts,” has a podcast service and apps featuring a lineup of shows that are available only to subscribers to its $8/month service. The exclusive content features some public radio mainstays as well as movie/TV stars like Lena Dunham, Russell Brand, Glenn Close, and Trevor Noah.

Luminary’s launch was not the smoothest. Industry press coverage (including mine) was uniformly skeptical. The company’s CEO — a venture capitalist with little industry background — attempted a pre-launch social media campaign about how podcasts should be ad-free, which sparked a swift rebuke from an industry that depends chiefly on ad revenue. The promise of over 40 exclusive shows became 27, with others to come soon. The Android app was still in beta.

And then the takedowns started. Spotify pulled its considerable list of podcasts from Luminary’s apps, including titles from the highly successful studio Gimlet Media (Reply All, StartUp, Crimetown) and smaller podcasts distributed on the Anchor platform; Spotify acquired both companies two months ago. The New York Times pulled The Daily, probably the most popular news podcast out there. Several other major podcast publishers followed, inculding iHeartRadio and PodcastOne.

“Takedown” is a word never before associated with podcasts. But the list of popular shows requesting removal from Luminary has been growing by the day, the backlash from the podcast community has been fierce, and the company’s Twitter feed has gone silent at this writing.

One reason for the removals has been a technical issue related to download and stream data that podcast publishers need to feed to advertisers, which Luminary’s platform has been blocking. The company has claimed that the reasons for this were not nefarious (they had to do with the use of a proxy server) and has been working to correct the problem. Another reason was that it was stripping URLs from “show notes” that accompany podcasts in feeds — including links to podcasts’ fundraising pages — citing “security concerns.”

But the money quote came from a representative of Joe Rogan, the comedian and talk show host whose highly popular podcast The Joe Rogan Experience was taken down from Luminary: “There was not a license agreement or permission for Luminary to have The Joe Rogan Experience on their platform.”

Ouch. The idea is that an app developer like Luminary could be threatened with copyright liability for offering a podcast on its service — which involves details such as listing an RSS link in a directory and enabling users to click on it to download or stream the content from a hosting service, or possibly caching the content on its way to the user. These functions have, of course, always been available; using their copyright implications as leverage to get podcasts taken down is new.

This development is bringing podcasting to a fork in the road, as listenership reaches mainstream levels and money comes pouring in. Will podcasting be about free distribution, ad revenue, crowdfunding, and merch sales? Or will it also be about paywalls, subscription fees, and platforms competing on content?

Luminary, Spotify, and Stitcher are the focal points right now. Spotify has been spending piles of money — way more than Luminary has raised — on podcast content. In addition to Gimlet, it has acquired Parcast, a number of individual shows such as Amy Schumer Presents, and several music-related shows that it has developed on its own. It includes its exclusive (or windowed) podcast content as part of its paid subscription service. Spotify’s strategy is clearly to bulk up on podcasts in order to differentiate itself from music services from Apple, Google, and others, without charging users extra.

Stitcher, meanwhile, started as a free “Pandora for podcasts” app several years ago. It eventually launched a $5/month premium service with some exclusive content, but it also sells ads on its Midroll network of over 300 shows. (Stitcher hasn’t pulled its shows from Luminary … so far.)

If the Luminary takedowns escalate, we could be heading towards a podcasting future of walled gardens and exclusivity — like television. We expect services like Netflix and Hulu to have ample but limited catalogs of TV shows available. We know we have to search to find out what shows are available on which services, and that we can only watch Game of Thrones on one and The Handmaid’s Tale on the other; we also know that TV networks will occasionally pull shows from one service or another if they don’t renew license agreements. Meanwhile, the exclusivity gambit has almost never succeeded with music; we all expect more or less the same music to be available permanently on Spotify, Apple Music, Google Play, Tidal, Deezer, Rhapsody, etc.

There are two root causes of these differences. One is that video content has always been windowed, while music has almost never been. The other is sheer volume of content: during the digital age, there have been tens of millions of music tracks available on the major music services, while Netflix and Hulu each have catalogs of about 1500-1700 shows with around 75,000 total episodes.

Podcasting lies somewhere in between, but it’s closer to music. Current estimates put the number of podcast shows at 700,000 and total episodes at 29 million. In this light, Luminary’s strategy of offering a few dozen exclusive shows and making them available only to paying subscribers seems extremely ambitious, if not Quixotic. (The company claims that the 700,000 figure is misleading because only a few hundred podcasts have listenership over 50,000, but the latter figures are disputed; and in any case, podcast listenership figures are not very reliable because it’s still largely a download-based medium.)

Still, there is a chance that companies like Spotify and Luminary could ratchet up the exclusive shows and takedowns, and that other big companies could join in. Himalaya is another startup with $100 million in its bank account; its model is a combination of exclusive content and in-app tipping (it presumably takes a cut). Amazon tried a paid subscription spoken-word audio service under its Audible brand, which it has apparently abandoned, but podcasts seem like a natural fit with its Echo smart speakers and it could get back into the game. So could Apple, which is venturing in to original TV content and whose podcast app is still the most popular by far. And Luminary could yet recover from its train wreck of a launch ($100 million buys a lot of marketing).

If podcasting ends up looking even a bit more like TV, then there will be plenty of licensing deals to be done, at least among the more popular podcasts — because of the copyright implications of podcast distribution. We’ll see as this fascinating market takes shape over the next couple of years.

UPDATE April 30: Yep: Stitcher is pulling its network of over 300 podcasts — the largest in the industry — off Luminary. So is PRX (Public Radio eXchange), another leading podcast network, home to 99 Percent InvisibleThe Moth, and The Allusionist. And Apple has removed Luminary’s promotional episodes of its paid podcasts off the Apple Podcasts directory, depriving Luminary of a very important promotional vehicle.

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