Court: Downloading music not a 'public performance'


Several sources tell that a federal court has ruled that there is no performance right for publishers and songwriters in a download. The decision came during a proceeding to determine royalty rates between ASCAP and digital services AOL, RealNetworks and Yahoo!.

Currently, digital services pay a performance royalty for streams and pay a digital phonorecord delivery (DPD) royalty, which is akin to a mechanical royalty, for downloads. The performance license covers the right to "publicly perform" the recorded composition, while the DPD license covers the right to "reproduce" a copy of a recorded song and to "distribute" it digitally.

But there's a distinct difference between digital performance and DPD licenses. The former are negotiable, so publishers have the right to say "no" to a license request. The latter are often compulsory, so publishers must grant the license if the song has been previously recorded and released in the United States. Requiring both licenses for one type of use could increase the cost to companies that want to offer downloads.

After ASCAP proposed a performance royalty rate that included a fee for downloads, the digital services filed a motion for summary judgment asking Judge William Connor to declare that there is no performance right in a download. That request prompted several groups to file amicus (friend of the court) briefs, including the National Music Publishers' Assn, the RIAA and the Digital Media Assn.

The decision, if not reversed on appeal, could detrimentally affect future performance fees as more television shows become available for downloading over the Internet (which would not require payment of a royalty) and less available for re-broadcasts (which would require payment of a royalty).