Judge Rules Against Download Performance Royalty

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A federal judge recently refused to assign a performance right to a download, despite efforts by publishing groups to pursue the extra royalty.

The widened categorization was being aggressively pushed by ASCAP, a massive performance royalty collections society.  A number of internet-based media companies protested the proposal, characterizing the extra demand an ill-conceived “double dip” alongside existing per-download payments.  “ASCAP’s assertion … that digital distributions of music and video are also public performances confounds legal, business and technological reality,” said Jonathan Potter, executive director of the Digital Media Association (DiMA), a group that represents companies like RealNetworks, AOL, and Yahoo.  Those online media groups are strongly interested in preserving lower royalties on downloaded content, especially given the potential importance of the transmission medium across music, film, and television in the future.

The ASCAP initiative also faced opposition from US Register of Copyrights Marybeth Peters, who characterized the demand as inconsistent with “common sense and sound policy counsel.”  In the decision, the court similarly found it difficult to apply a performance right to the discrete download of a media file.   “Although we acknowledge that the term ‘perform’ should be broadly construed … we can conceive of no construction that extends it to the copying of a digital file from one computer to another,” the court opined.  The decision comes years after the advent of the paid download, part of a dragged-out, contentious climate between a number of stakeholders in the digital media arena.  That acrimonious tone was glaringly apparent during debates Tuesday at the annual Digital Summit in Nashville, TN, a conference that featured heavy verbal sparring between members of the recording, publishing, streaming radio, consumer electronics, and entertainment ecommerce sectors.