Court Dings ASCAP, Says A Download Is Not A Performance

In a copyright-related court decision that actually kind of makes sense, a federal judge who, in the past, has frequently been on the side of copyright holders sided against the American Society of Composers, Authors and Publishers (ASCAP) and with AOL, RealNetworks and Yahoo! in finding that downloading a piece of music is not equivalent to a public performance of that music. As a result, ASCAP and its clients are not entitled to additional royalties from music downloads:

The judge wrote that under the Copyright Act, there is not a “public performance” unless there is first a performance. To perform a work means to recite, render or play the work. For a song to be performed, it must be “transmitted in a manner designed for contemporaneous perception,” the court wrote. A person must be able to perceive the song as it is being transmitted.

Downloading a music file is more accurately characterized as a method of reproducing the file, the court wrote. Digitally reproducing a file requires a digital phonorecord delivery (DPD) license, similar to a mechanical license for physical goods like CDs.

In the 12-page opinion, the court noted that its position was supported by the Copyright Office’s 2001 report to Congress on the effect of new and developing technologies and the Commerce Department’s 1995 report of the Information Infrastructure Task Force. They did not endorse the position that a download constituted a public performance.

ASCAP had argued that downloaded music files are indistinguishable from streamed performances because, after a certain amount of data has been transmitted, the purchaser can begin listening to the transmitted portion of the music file. The court wrote that it was not persuaded by this argument.

“The mere fact that a customer’s online purchase is conveyed to him in a piecemeal manner, each segment of which is capable of playback as soon as the transmission is completed, does not change the fact that the transaction is a data transmission rather than a music broadcast,” the court wrote.

ASCAP’s argument is a kind of novel one, if you think about it. And it makes us curious to hear whether or not, following this logic, the organization would want to charge double for downloads that have to be started again because someone’s bandwidth craps out–sure, the person may be able to hear a bit of the downloaded song, but would it be fair to charge a full royalty for half a “performance”? We’re thinking that the judge may have a not-so-stable wireless connection at home, and that may be why he found ASCAP’s case just a bit lacking.

No Performance Fees For Music Downloads [Billboard.biz]