ASCAP Lawsuit Seeks To Classify Music Downloads As ‘Public Performance’

A federal court in New York will decide the question of whether downloading a song constitutes a “public performance” of a composition in response to a lawsuit brought by music publisher ASCAP against AOL, RealNetworks, Yahoo and others. The performing rights organization filed a cross-motion in the United States District Court for the Southern District of New York and was met by friend of the court briefs by a flurry of concerned parties, according to BillboardBiz, which listed the RIAA, BMI, the National Music Publishers’ Association, the Digital Media Association, the Cellular Telecommunication and Internet Association.

Until now, most digital services like Apple, AOL and others have only paid royalties for “reproducing” the recorded compositions that were downloaded. Most digital services have paid public performance royalties to ASCAP, BMI or SESAC only for streaming, all of which has been governed by a non-binding agreement was made some years ago since copyright law was unclear on the subject and digital services were at a nascent stage.

Now, ASCAP and others want clarification of copyright law, especially since television broadcasts, which often include music, are increasingly being offered as downloads. The performing rights organization claims that there should be a performance royalty. DiMA, whose brief was supported by NARM, the Entertainment Merchants Association, the Consumers’ Electronics Association, is fighting ASCAP’s suit. Jonathan Potter, DiMA’s executive director, said in a statement: “For a decade ASCAP and BMI have successfully preyed on less-confident or underfinanced companies that were willing to pay double-dip royalties. Now, however, we are confident that a judge will finally end this travesty.”