Judge Rules No Performance Rights in Music Downloads

By • April 25, 2007

A federal district court has ruled against music royalty society ASCAP, declaring there is no performance right for writers and publishers in music downloads. Click here to download a copy of the decision

If not reversed on appeal or otherwise overturned, the decision could mean huge losses for composers who work under work-for-hire agreements on films and television shows as viewers migrate away from watching television “live” in favor of downloading films and TV episodes.

Apple’s iTunes online store has already delivered over 18 million copies of films and television episodes via download. Film and television composers historically receive no royalties for DVD or videotape sales or rentals, and often depend on performance royalties from ASCAP, BMI and SESAC generated from public performances of music on television and elsewhere for their livelihoods.

Performing rights organization ASCAP on February 28 filed a cross-motion in the United States District Court for the Southern District of New York, asking the Court to confirm that all Internet transmissions of musical works to the public, including digital streams and downloads, are public performances. It is ASCAP’s position that all digital streams and downloads should be subject to licensing by the creators and copyright owners of those works, through organizations like ASCAP which represent them.

ASCAP’s position had been opposed by several groups including The Digital Media Association (DiMA), which submitted a “friend of the court” brief opposing the claim by ASCAP that digital music downloads are “public performances” , with DiMA’s Executive Director Jonathan Potter labeling ASCAP’s claim for performance royalties on downloads a “double-dip scheme,” referring to the fact that substantial mechanical license fees are already paid to television, motion picture and sound recording copyright

ASCAP’s argument also faced opposition by Marybeth Peters, the US Register of Copyrights. In testimony March 22 in Washington before the House Subcommittee on Courts, the Internet and Intellectual Property, Peters
described in detail the current areas of dispute regarding performance and mechanical royalties on music transmissions, especially on the Internet.

While Peters indicated that the law is “ambiguous” on the issue of whether internet music downloads should include a performing right, she made no secret of her own position on the issue, stating “Common sense and sound policy counsel that the transmission of a reproduction of a musical work without any rendering of the recording at the time of delivery should implicate only the reproduction and distribution rights.”

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