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Sept. 3, 2019, 9 a.m.
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Book publishers are suing Amazon over text captions for audiobooks. What might that mean for podcasts?

Plus: A canon of podcasts, the failures of the Apple Podcasts platform, and an update on plagiarism allegations against Crime Junkie.

Editor’s note: Hot Pod is a weekly newsletter on the podcasting industry written by Nick Quah; we happily share it with Nieman Lab readers each Tuesday.

Welcome to Hot Pod, a newsletter about podcasts. This is issue 224, dated September 3, 2019.

What happens in the absence of recognition? “I’ve achieved a peculiar sort of success,” said Nate DiMeo, creator of The Memory Palace, when we spoke over the phone last week on the occasion of the podcast being featured as the subject of a Radiolab episode that dropped last week.

By “peculiar,” DiMeo was referring to what he perceives as the podcast’s cult status, understanding it to be the kind of cultural artifact that may be respected and perhaps beloved by other producers and die-hard podcast fans, but probably won’t end up on the front cover of Variety or the leading anecdote of some mainstream write-up on “the podcasting boom” or whatever.

To contextualize said cult status, DiMeo evoked the Velvet Underground — famously, the band that other bands listened to and, uh, borrowed from — which is a positioning that lies somewhere between modesty and the opposite of modesty, but is nonetheless more accurate than not, I suppose.

“The analogy is far from perfect but, artistically, historically, there’s a little bit of a Velvet Underground thing that I hear about now and then about the show,” said DiMeo. “As someone who’s always been steeped in underground music and art and stuff, that’s recognition I can feel good about. That said, I can’t say I wouldn’t like to see where I’d fit in if there were the Premiere Magazine or the Lincoln Center Podcasting Forum or whatever. It’s hard to know where you fit in when you don’t quite fit in. And, I don’t know, it’s hard to know how good or not to feel about that.”

Peculiar success is still success, though, and from the outside, one could surmise that The Memory Palace has it made. The podcast is affiliated with the celebrated Radiotopia collective, which is equally beloved as a creative enterprise and a symbol of independent ownership. And though DiMeo notes that the podcast doesn’t do the same kind of numbers as certain other Radiotopia shows, given the show’s many idiosyncrasies (it’s bite-sized, paced like a poem, and pretty hard to pitch), he tells me that it’s directly opened up a ton of other  opportunities, including a residency at the Met, a television writing gig, live performances abroad, book publishing in Brazil, and a feature film-in-progress based on a Memory Palace episode .

And yet, speaking to DiMeo last week, I was struck by the extent to which he still doesn’t feel as if The Memory Palace has had its day.

“I think there’s a distinct type of success that I only can really get my head around with shows I know well done by people I know with varying degrees of well, like 99, Criminal, or Reply All or whatever. Where audience, in a sense, begets audience. Where the bigness of the show itself, helps sustain and expand bigness,” he said. “But: The Memory Palace can’t be one of those shows, I don’t think. It’s kind of a moot point. Too idiosyncratic, too narrow, too me.”

Which raises the question: what does proper recognition look like for a community as nascent and idiosyncratic as podcasting? And to what extent is it important?

For DiMeo, at least some of the answer seems to be tied with the notion of The Canon. “Part of my fascination with history is rooted in something approaching a life-long fascination in the processes of canonization: what makes the great movies the great movies? Who gets a say in the history of rock and roll?” he said. “But we’ve got this new art form and new industry that doesn’t have the same sorts of infrastructure for canonization.”

Part of that infrastructure underdevelopment, DiMeo argues, has to do with the medium’s relative youth. After all, the currency of many of the rituals we broadly consider to be culturally important — like the Oscars or Thanksgiving — is partly driven by their longevity, despite the many ways in which the actual things themselves are nonsensical.

But DiMeo also believes it has to do with an aspect distinct to the present moment: the post-monoculture environment. These are times of #content overabundance, so much so that it’s much less likely that we will collectively coalesce around major set pieces of culture — e.g. Game of Thrones, or maybe the endless provocations of the current American president — and much more likely that we build our cultural lives off on a composite of niches. “Podcasting grew up in the post-monoculture world and it grew too big too fast to have it make any sense to even, I don’t know, try to create the…NYRB or Pitchfork of podcasts,” he said.

The end result, DiMeo argues, is an ecosystem without true internal sources of validation, which in turn leads to what I suppose you could call it a crisis of achievement. “Absent someone telling me where I stand, recognition is a particularly hard thing to wrap your head around,” he said.

For what it’s worth, I have my scruples with ideas of The Canon and how critical infrastructures were historically been constructed. Which isn’t to say that I’m glad for a world in which the role in which The Critic, insofar as they are the custodians of any Canon, is significantly diminished. It’s just that I’m partial to the argument that traditional notions of The Canon and Criticism tend to be grounded in a power dynamic that isn’t particularly informed by a sense of accessibility or equity. This argument has been developed plenty elsewhere, but there remains some stickiness around that reality that Canons tend to be historical products of elite frameworks that have often excluded popular and underrepresented tastes. So there’s a way in which I find myself skeptical about DiMeo’s preoccupation here, and there’s an extent to which I find a good bit of comfort in a post-monoculture, post-Canon world.

At the same time, though, I can’t help but resonate with pieces of DiMeo’s longing: there should be post-Canon mechanism of proper recognition and validation that feels genuine and substantial for the podcast maker. (On the flip side, this is partly the reason why much of my personal cultural intake has swung so vigorously toward sports: there is a primal, probably very male, part of me that is still drawn towards conversation about “greatness,” and boy do I love the definitiveness of zero-sum outcomes. RINGS, BABY.)

There is also, I suspect, material consequence to podcasting’s under-canonized condition. In a system that offers little recognition to creators in terms of where they stand, there exists a greater incentive to look outward for third-party validation: Hollywood adaptation deals, cover stories on Variety, coveted mentions in The New York Times or the New Yorker — and, perhaps most importantly, through the hard financial language of investment rounds and acquisitions. Consider: at this point in time, are there more straightforward ways to validate one’s podcast machinations than, say, selling your podcast company to a media conglomerate?

I don’t know. And if the answer is no, it’s a situation that doesn’t sit well with DiMeo. “I grew up in the no-sell-out, corporate rock sucks, Dischord/K/Simple Machines/Kranky/Drag City/Load Records DIY 90s,” he said. “And you know what? Corporations do suck. Non-creator owners telling creators how their show should be made sucks. People chasing hits by making shows that sound like hit shows kinda sucks. We’re this close to hearing about layoffs on thriving shows because their ownership group needs to squeeze more profit out of underperforming units to hit Q3 expectations. Before Vaulter goes under. Own your thing.”

You can listen to the Radiolab episode on The Memory Palace here.

Closed captioning [by Caroline Crampton]. Back in July, Audible announced a new feature called Captions, which uses automated transcription to produce read-along text that appears on a smartphone screen while an audiobook is playing. The company pitched this very much as an “educational” resource, pledging to offer free access to students and schools as well as providing the option to turn on the captions for paying Audible subscribers. The rollout was planned for the beginning of the 2019 school year, on September 10.

Right from the start, publishers made their opposition to this move clear, believing that it would seriously harm sales of ebooks when Audible was already making the text available with an audiobook purchase and would contravene existing contracts to do with different book formats and editions (i.e., Audible has the audio rights and can therefore sell an audiobook, but not the text rights). The company maintains that because there is no ability to scroll through the entire book — the transcript appears on the screen phrase by phrase as it is read — there’s no conflict with existing digital editions. There is also the option to offer translations within the Captions feature, apparently, which opens up a whole other front of problems, since rights for books tend to be sold territory by territory and may well be owned by different publishers.

Some publishers immediately called the feature an “unauthorized and brazen infringement of the rights of authors and publishers,” and the Association of American Publishers, together with Chronicle Books, Hachette, HarperCollins, Macmillan, Penguin Random House, Scholastic, and Simon & Schuster, filed a suit in New York on August 23 to prevent their titles from being included in the Captions feature without their explicit permission.

Although Audible continues to deny that the feature violates any agreement, the company did file a stipulation on August 28 agreeing to exclude the works of the publishers involved in the legal action from the feature until the whole lawsuit is resolved. The Captions feature will go live next week for Amazon-owned and public domain titles, however.

This isn’t the first time that Amazon and book publishers have done battle over audio. In 2009, Amazon had to backtrack on a proposed “text to speech” option on the Kindle 2 that would have meant a reader could listen to a machine-generated reading of any book without also purchasing the audiobook. In that instance, publishers won the right to disable the feature on their titles. A decade on, it’ll be fascinating to see if the courts come to a similar conclusion for the opposite situation: audio becoming text instead of text becoming audio.

Part of the reason this whole situation seems relevant to our interests is that I suspect that we’re not very far off a similar moment in podcasting, given the encroaching prevalence of automated transcription within podcasting apps and platforms. Apple and Google are already doing it to varying extents, and one would guess that Spotify won’t be far behind. This under-the-hood feature is, for now, being sold to podcasters and listeners alike as a tool to enhance podcast search and episode discovery.

But should these transcripts ever become publicly visible, it’s not hard to imagine a situation where a publisher would rather a listener visit their own website for an accurate transcript (perhaps enhanced with advertising or calls for support) than experience it via a machine-generated version on a third-party platform. In that instance, who owns the text version of a podcast’s audio? It’s a murkier scenario than with book publishing, where all aspects of a work tend to be defined by the author’s contracts.

For another instructive and partially related example, we can look to song lyrics. The lyrics and annotation website Genius recently won a dispute with Google over its work being surfaced as search results without credit or link, or coming via a service that pays the originator for the use of the lyrics. It’s yet another of those brave new digital world problems — who owns the text version of what you hear? I’m betting a podcast test case will be coming soon to a courtroom near you.

Feature misalignment. Ashley Carman over at The Verge — who, by the way, is doing great work on the podcast beat — pubbed a fascinating piece last week on a pernicious phenomenon: the weaponization of one-star reviews on Apple Podcasts to actively harm other podcasts.

The Verge piece was built on a few key examples. There’s a scenario in which a podcast personality activates their engaged fanbase to flood negative reviews on a target’s Apple Podcast listing. There’s another in which a podcast personality is suspected of paying an automated service to perform the same task instead. Another thread covers a broader phenomenon of listeners, broadly speaking, piling on podcasts published by figures deemed controversial.

The article focuses particularly on the system failure aspect of the story: Apple Podcast reviews, as a platform feature, are supposed to help listeners with discovery and selection, but if the feature is easily compromised and weaponized by a coordinated effort from third parties, why aren’t we seeing more efforts to protect its integrity? (Carman points out that the platforms still hasn’t fully followed through with many of the affected parties.)

Furthermore, it’s not as if Apple Podcast reviews have been particularly meaningful, either as part of a larger value narrative that informs advertising buys — in fact, the piece briefly touches on how ad buyers already instinctively dismiss the platform’s review system as a relevant metric — or in the context of how they relate to Apple Podcast’s black box charts algorithm.

Sure, there may be some trailing belief that reviews and ratings have some weight in chart placement determination, given that you can still hear the phrase “please rate and review us” uttered at the tail end of many podcasts. At best, though, it feels like kind of a Pascal’s Wager ritual: it may or may not be helpful, but you might as well throw that call-to-action out there because the cost of doing so is low and there’s potential upside if it does indeed matter.

For the Apple Podcast platform, the reality seems to be the inverse. The review system doesn’t seem to be all that successful as a direct listener discovery mechanism. (If it were, we’d probably hear fewer complaints about “podcast discovery being broken.”) And given the review system’s susceptibility to being weaponized for anti-discovery purposes, it feels like a feature that provides very little upside and disproportionately massive downside. From a risk and reward standpoint, it’s hard to justify the feature’s continued existence.

The way I see it, this story is less about a specific instance of system failure, and more about a broader effect of cultural misalignment. The Apple Podcast experience was first constructed during a very different era of the internet — as part of the original iTunes experience, in the mid-2000s, pre-Gamergate. We live in a very different digital era right now, one in which psychological conflict, territorial spats, and cyberbullying have to be taken as givens within designed digital spaces, and platforms have to build features in anticipation of that reality. As a user experience, Apple Podcasts still retains many of its mid-2000s assumptions, the largely unmoderated review system among them.

The platform is still stuck in the past, and until it makes key design changes to reckon with modernity, its participants will continue paying the price.

Crime Junkies update [by Caroline Crampton]. There’s been an escalating development with the plagiarism accusations leveled against the Crime Junkie podcast by reporter Cathy Frye, who initially alleged in a comment on the podcast’s Facebook page posted on August 15 that her copyrighted investigative series Caught in the Web had been used “almost verbatim” as the basis for an episode about the murder of 13-year-old Kacie Woody in Arkasas in 2002. (There’s a fuller outline of the whole story to date and its possible implications for podcasting more generally in Nick’s Vulture piece and last week’s Hot Pod.)

Now, attorneys for the Arkansas Democrat-Gazette — where Frye used to be a reporter, and the publication that published and copyrighted her original Kacie Woody series — have sent a cease-and-desist order to Crime Junkie co-host and creator Ashley Flowers. The order asserts that the publication “owns all the rights, title, and interest in and to its copyrights, including but not limited to the copyrights to the archival stories and photographs published in its daily print publication or through its digital properties” and that any unauthorized use of such material is a copyright infringement.

Further, the order requests that Crime Junkie “fully and unequivocally credit ADG’s copyright and Cathy Frye’s reporting at the beginning of the podcast.” On August 23, Crime Junkie reinstated several episodes to its feed that had been removed when the allegations first began to circulate (including the one about the Kacie Woody case) and noted in a Facebook post that all sources were now “comprehensively cited on the blog,” and that all new episodes would have “thorough citations” going forward. No mention was made of whether in-episode audio credits would be added.

Crime Junkie has until September 12 to respond to the ADG’s cease and desist, which says that the publication “may take further action including but not limited to filing a lawsuit” if the conditions (i.e., that the original reporting be credited at the start of the episode or the episode be removed) aren’t met.

Nick wrote last week hat this incident seemed like “the beginning of a tipping point, one in which there will be more debt payments to come,” and this legal escalation seems to support this argument. Podcasters, especially in the true crime space, who rely heavily on sources that go uncredited will be looking nervously at their own feeds, and publications with grievances to pursue will be buoyed by the ADG’s approach. There’s certainly a momentum to these kinds of accusations; where there is one, more will follow as other parties take stock and consider their options.

One aspect of this that I’m interested in keeping tabs on — as the Digital Wild West of second-hand sourced true crime podcasting begins to be tamed a little — is what routes, if any, to reputational rehabilitation are out there. It is, of course, too soon to say what will happen in the case of Crime Junkie, but if, hypothetically, a podcaster chooses to apologize for any previous infractions, comply with any retrospective requests for credit, pay any penalties incurred, and tighten up their process going forward, how will that be received by their audience and the wider community?

True crime as a podcasting ecosystem has attracted some big money deals in the recent past, from Spotify’s acquisition of Parcast to numerous TV adaptation deals. Those eyeing similar arrangements in the future may be incentivized to keep their slate clean, depending on whether this becomes an issue where people have long memories.

Spotify appears to be testing an in-app “create a podcast” button… Sort of. Kinda. Maybe? The feature was first spotted by app researcher Jane Manchun Wong, and according to her tweets, tapping the button sends you to the Anchor app, the podcast hosting company that Spotify acquired back in February. And if you don’t have Anchor on your phone, it leads you to a page recommending that you download the app instead.

In other words, it sounds like an in-app house ad. But a really fancy one!

The Open Source podcast joins Hub & Spoke… Open Source with Christopher Lydon is, depending on how you look at it, the world’s first podcast, and even if you dispute that, it’s technically the longest-running one. Whatever you believe and however you argue the point, the show is joining Hub & Spoke as the Boston collective’s seventh show.

Shout-out to the Relay FM crew… “Relay FM Plans Podcast Fundraiser for St. Jude.” Details here.

Conference watch. The Sound Education Conference, which targets “educational podcasters, producers, and listeners,” returns for its second iteration October 9-12 in Cambridge, MA. Meanwhile, if you’re in London later this month, Martin Zaltz Austwick tells me that this year’s iteration of the Podcast Maker Weekend will be held on September 14 and 15, as part of the London Podcast Festival, which will feature an array of podcasting workshops and talks.

POSTED     Sept. 3, 2019, 9 a.m.
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