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Court sez music downloads aren't performances

ASCAP sings the blues...

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ASCAP isn't enjoying the tune that came out of a federal district court in New York yesterday.

The court ruled that music downloads don't constitute performances of copyrighted works, and are merely mechanical reproductions of the copyrighted material. This denies ASCAP any entitlement to collect royalties for downloads as they do for web radio streams.

The landmark ruling arose out of a suit between ASCAP, AOL, Yahoo! and RealNetworks. The three Internet companies attempted to negotiate licenses to perform ASCAP works over their music services, but the negotiations stalled and ended up before the district court for a determination of a reasonable license fee.

After a long, drawn-out litigation, the case boiled down to an important question: could ASCAP demand a performance royalty for downloads that the companies sold to users? The court found that a digital download did not meet the legal definition of a performance, and so it ruled in favor of the music services.

In arriving at its ruling, the court ironically relied on the Recording Industry Ass. of America's brief supporting the music services. In order to figure out why the RIAA came out in opposition to its rights-holding brethren, a quick rundown of copyright law is in order.

Music copyrights break down into two basic groups: first, there is the copyright in the composition of the music - the actual, abstract musical work that a bar singer learns and then belts out to disinterested drunks at the local watering hole. ASCAP handles royalties for this kind of copyright. Every time the bar singer performs a certain musical work - we've always liked George Thorogood's "One Bourbon, One Scotch, One Beer" - ASCAP collects a fee that it then passes back to the composer.

This kind of copyright is distinct from the second type of copyright that exists in a specific recording of a musical composition - Rounder/Umgd's 1990 CD release of "George Thorogood & the Destroyers," for example. The recording copyright usually belongs to the record label, which is usually represented by the RIAA.

The RIAA took the position that downloads are strictly reproductions of the recording, with no performance component. In essence, it was sending a not-so-subtle message to ASCAP to stay off its turf. The RIAA doesn't want anyone else to reach their hand into the till, since that would give the download services some leverage to bargain for a decrease in the recording royalties that they pay to the RIAA.

The court agreed with the RIAA's interpretation of the law involved, and found that the act of downloading a song had no performance element. The court regarded a performance as something with a "contemporaneous perceptibility," and viewed a download as a simple file transfer. Streaming, on the other hand, constitues a performance by the music service since it is immediately perceived by the listening public.

Now, everyone knows that it's possible to listen to an music file while it's downloading. The court didn't ignore this fact, and pointed out that the playback was occurring off of the purchaser's own hard drive after a sufficient amount of the file had downloaded. The judge contrasted this with the streaming scenario, where the playback comes directly from the web channel's servers.

The judge compared the situation where a purchaser listens to an mp3 during a download to a customer at a music store buying a CD and then immediately listening to it before leaving the store. Surely, this wouldn't result in a public performance by the vendor, right? The court here certainly didn't seem to think so, and so it struck down ASCAP's attempts to get performance royalties from the online music stores.

So, to break down a busy month for music on the Internet: download services catch a break in the federal courts, web radio gets royally screwed, and the RIAA laughs all the way to the bank in both cases.

That last one stings a bit, don't it? ®

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