Ok guys...major court decision on ASCAP appeal on downloads!

[Phnymiboy]

ASCAP Loses Major Music Download Appeal Case; Blanket License Fee Calculation Remanded to District Court

By Mark Northam October 6, 2010

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The US Second District Court of Appeals has ruled against ASCAP in a landmark case involving internet companies RealNetworks and Yahoo that attempted to establish that music downloads constitute a public performance.

In a strongly worded opinion, the court affirmed the district courts ruling that a download of a musical work does not constitute a public performance of that work. The court sent a related matter regarding the calculation of blanket license fees for RealNetworks and Yahoo back to the US Second District Court to be reconsidered.

Click here to download the complete court decision (PDF)

In the opinion written by Circuit Judge John M. Walker, Jr, the court analyzed existing copyright law and precedent, and made extensive references and explanations regarding the definition of perform in Section 101 of the US Copyright Act which states that to perform a work means to recite, render, play, dance or act it, either directly or by means of any device or process. The decision in large part hinged on the fact that a download does not include a contemporaneously perceptible event that during a download, the musical work could not be heard or listened to.

After describing ASCAPs legal conclusions as flawed and accusing ASCAP of misreading the courts own opinion in a related case, Judge Walker writes, The downloads at issue in this appeal are not musical performances that are contemporaneously perceived by the listener. They are simply transfers of electronic files containing digital copies from an on-line server to a local hard drive. The downloaded songs are not performed in any perceptible manner during the transfers; the user must take some further action to play the songs after they are downloaded. Because the electronic download itself involves no recitation, rendering, or playing of the musical work encoded in the digital transmission, we hold that such a download is not a performance of that work, as defined by [uS Copyright Act] Section 101.

ASCAP released a statement on the decision, stating, ASCAP and its songwriter, composer and music publisher members are, of course, disappointed in the Courts decision that there is no public performance in the transmission of certain musical downloads.  We are studying the decision and will determine what further action is appropriate. The Second Circuit remanded the rate calculation back to the district court with instructions to determine whether there are more precise or practicable methods of fixing a rate for the use of our members music.  We anticipate that in the end, the proceeding will result in a fair and favorable license fee to be paid by commercial online services for the valuable intellectual property they use to sustain their businesses the music created and owned by the songwriters, composers and music publishers ASCAP represents.

[Joe Muscara]

Here, maybe this is where you got that article from.

 

http://www.filmmusicmag.com/?p=6296

 

If by "download" they mean that a file is transferred from a server to my computer, and then I have to launch a program such as iTunes or QuickTime to open the file and listen to it, I think I agree with the decision. This file would continue to be on my computer and accessible to me whenever I wanted to listen to it. (How they would have the right to distribute that song is another matter.)

 

However, if they mean an audio file that is streamed to me and played by a player in my web browser whether it be Flash-based or something else where it's part of my web browsing experience, I don't agree. Similarly, a song played by a program that streams music to me such as Pandora should pay. However, these may be covered under SoundExchange, not PROs. I don't completely understand that difference yet.

 

I'll admit to not having read the entire decision nor completely understanding what I did read yet.

[Griffinator]

Pandora is paying (hence why there are so many ads on Pandora now, and an option to buy out of the ads), because it is a direct stream performance.

[Joe Muscara]

But whom is Pandora paying, ASCAP/BMI/SESAC, or SoundExchange?

[Joe Muscara]

Now that I've read a bit of it, I agree with the decision. "Downloads" here are different than streams and broadcasts, and it appears that ASCAP is already being paid for those based on previous decisions made by the district court.

 

The only question I still have is what is being downloaded and are these songs being paid for somehow. Perhaps this will be revealed as I read the rest of the ruling.

[Jim Alfredson]

ASCAP doesn't handle streaming. That's SoundExchange. ASCAP is in the wrong on this one.

[Joe Muscara]

I would agree, but according to the court document, ASCAP is collecting for streaming in these cases. Well, they are collecting a "blanket license fee" that's determined by a formula for each network based on the network's content and percentage that "should" go to them.