Not Rethinking Digital Copyright: Ruling Ends ASCAP's Magical Thinking

Posted by Kristen Cichocki at April 30, 2007 07:28 PM

Not Rethinking Digital Copyright: Ruling Ends ASCAP's Magical Thinking


On April 25th, the U.S. District Court for the Southern District of New York ruled against the American Society of Composers, Authors and Publishers (ASCAP) holding that downloads of music over the internet did not constitute a public performance under copyright law.


Performance rights societies, such as ASCAP, license and collect royalties for the public performances of their member’s works. Traditionally this has meant all performances of a work on radio, TV, cable, in bars, clubs, malls, airlines, websites, etc; in short, public places where the work was played and somebody heard it.  ASCAP also collects performance fees on all digital streams, which are not unlike radio broadcasts.


On March 1, 2007, ASCAP filed a request to initiate a royalty rate proceeding with reference to royalties for online music provided by AOL, Yahoo! and RealNetworks.  In its motion, ASCAP asked the court to confirm that all transmissions of music over the internet, including downloads, are public performances.  This is where the magical thinking comes in.


Under Sec. 101 of the Copyright Act, “to perform” means to recite, render, play, dance, or act it, either directly or by means of any device or process. To perform a work “publicly” means 1) to perform at a place open to the public where a substantial number of persons gather or 2) to transmit the work to a place open to the public or by device or process in a way the public is capable of receiving it (think radio).


I don’t know about you, but when I download something I’m usually by myself (in the law library).  And what I get from iTunes is not a ‘performance’, but a copy of a musical work for which I’ve paid.  Not dissimilar to what I get when I go to my local music store and buy a copy of the latest Modest Mouse CD.


The court obviously agrees. In his opinion, U.S. District Judge Connor noted that the language of the statute was clear, “in order for a song to be performed, it must be transmitted in a manner designed for contemporaneous perception.”  The court then aptly pointed out that the downloading of a file was more accurately characterized as the reproduction of a music file, i.e. a copy. As the court points out, this is consistent with the holdings in the peer-to-peer file sharing cases which found that the downloading of copyrighted music files violated the plaintiff’s reproduction rights.


The court thus declined to rethink downloads and maintained, contrary to ASCAP’s creative imagining, that downloads are nothing like radio broadcasts or digital streams. A download is simply the transfer of a file from one location (the iTunes server) to another (my laptop).  Like the sale of a CD, the one who transfers the file pays what is known as a mechanical license fee to do so. In the digital realm it’s called a digital phonorecord delivery (DPD) license.


Unfortunately for ASCAP, mechanical license fees are paid to the Harry Fox Agency.


Read the full opinion here


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