Development of Creative Commons licenses

[Eric Garner <ejgarner AT yahoo.com>]

Okay, here's the scoop: I just got off the phone with a SoundExchange licensing rep. He stressed the fact that he's not a lawyer, and neither am I. So keep that in mind. This is just a note of what was said and my thoughts on it. Anyone who spots something erroneous here is welcome to correct me since I only want to make sure that what I took from the conversation is true.  

The rep spoke at length about the issue of valid licensing, and essentially he broke everything down into two catagories: statutory licensing and direct licensing. A direct license can take any form of agreement between a rightsholder and a webcaster. He wasn't aware of what a Creative Commons license was, but said that if I post my music on my website and make it clear UP FRONT on the website that downloaders have my permission to redistribute it, that should be sufficient to qualify as a direct license. (He did stress that the rightsholder must own both copyright and performance right for this
 to be valid. For instance, my terrible cover of "Purple Rain" would not qualify, but we already know this. ;)  ) Essentially, as long as you own both rights to your music, the direct license can be in ANY form.

Just to play devil's advocate, I asked what would happen if my neighbor had a band and I were a webcaster, and I webcast some of his music. He said if SoundExchange questioned me about it and I said we had a direct agreement, they wouldn't have any problem with that and they'd move on, AS LONG AS my neighbor owned both (c) and (p) rights. My own thought on this is that CC licenses, since they (are supposed to) travel with the content, will suffice, especially if the webcaster kept an accurate log of where all the music tracks were downloaded from. Again, IANAL. But as a for-instance, on my own podcast I make sure that the metadata contains the CC license, as well as the website where I downloaded the track from, so that the information stays with the
 music even when the show is downloaded onto an iPod. If a webcaster did something similar, so the license travels with the content, it sounds like SoundExchange would be okay with that from what this guy said, as long as all the above-noted conditions were true.

The issue of the NC license certainly does add an element of complexity though. It's unfortunate because I'd bet most musicians who use NC just want to make sure a scenario like McDonald's using one of their tracks in a commercial won't happen, not knowing about the difficulties this could cause a webcaster with a tip jar, to use a previously given example. Given that such a musician needs to be of a certain mindset to even consider CC-licensing, I'd bet this is not their intention at all. But if I were that webcaster, a musician who belongs to ASCAP and puts his tracks under an NC license would probably be passed over in the music-selection stage because, obviously, I'd be afraid of ASCAP showing up to
 enforce the (p) rights.
 Again, such are the issues surrounding real-world use of CC-licensing.