Victory for Common Sense in Licensing
Victory for Common Sense in Licensing
Victory for Common Sense in Licensing

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    A federal court in New York has ruled that online stores selling digital music didn't have to pay songwriters two separate licensing fees. In a dispute between ASCAP (which manages licensing rights for songwriters) and online music sellers (Yahoo, AOL, and Real), Judge Conner of the Southern District of New York ruled that music download services only had to pay the license fee for “reproducing” the work, and not an additional fee for “performing” it. ASCAP had argued that anytime an online store sells a track, it not only makes a new copy for the buyer's use, but that it also “performed” the purchased song by transmitting it over the Internet to the user's computer.

    The court found this argument unconvincing. Although streaming a song is undoubtedly a performance, simply downloading it doesn't implicate that right. The key difference, as the court noted, is that the file transfer isn't perceptible to the listener. The court not only based its decision on the plain dictionary definition of “performance;” it also noted that previous court decisions on downloads talked strictly about the reproduction right, and not the performance right. The court also cited reports from the Copyright Office and the Commerce department that clearly opine that downloads shouldn't have to pay the performance fee.

    Nor, according to the court, does it matter that someone can listen to the track while they're still downloading it:

    However, the mere fact that a customer's online purchase is conveyed to him in a piecemeal manner, each segment of which is capable of playback as soon as the transmission is completed, does not change the fact that the transaction is a data transmission rather than a musical broadcast. Surely ASCAP would not contend that if a retail purchaser of musical records begins audibly playing each tape or disc as soon as he receives it the vendor is engaging in a public performance.

    It's relieving to see some common sense in the copyright debate–the judge notes that it doesn't really matter when the track is played–it belongs to the user, the user is playing it, and is perfectly in his rights to do so, no licensing fees attached. The fact that it's still being delivered from a remote site and not from the user's own hard drive.

    Maybe it's a bad sign when common sense is a cause for celebration, but in this realm, sometimes it is. alongside this good news, though, is something worthy of notice in a footnote towards the end of the opinion:

    We do not mean to foreclose the possibility, however, that a transmission might, under certain circumstances, constitute both a stream and a download, each of which implicates a different right of a copyright holder.

    This seems right, but depending on how it's interpreted, it can lead to some oddities. Of course, there can be situations where a store will stream and download a song at the same time.

    Let's say, for instance, I'm listening to a web radio station, and there's a context-based ad that lets me buy the song if I like it. In that case, there would be a stream (and the performance fee), as well as a download (and the reproduction fee). But now that I've bought the track, I can listen to it whenever I want, without any additional funds flowing to ASCAP, or any additional charge to myself. Why did my webcaster/store pay twice? In this case, it's because there were two separate transactions–the webcast and the sale–and no one had any guarantees that I or any other listener would buy the song.

    But that's two separate transactions. What situation would create both a stream and a download, where the initial performance wouldn't be of a part and parcel of subsequent replays of the track? Would a webcaster who streamed a live performance and charged users to save the archival copy have to pay twice? What if the webcaster merely 'cast the performance, and a user decided to use a stream capture to save a copy? Would Judge Conner call that a simultaneous stream and download? How is that different from a tape recorder, VCR or DVR, where neither the manufacturer nor the broadcaster should have to pay a reproduction fee?

    This kind of thinking is what drives the thinking that home taping is a copyright violation, and that gets makers of digital recording devices sued. For example, XM is being sued for having the temerity to sell a satellite radio receiver that can record broadcasts.

    Part of the larger problem is that the copyright law, in parceling out specific rights like “reproduction” and “performance,” didn't foresee technologies where those individual activities might be more blended into each other. For instance, any time you distribute a file digitally, multiple copies are made along the route. These copies are incidental and unusable to consumers, but there are those who, like ASCAP, would want to charge a fee for each step along the way, despite the fact that only one copy, the one received by the end use, has any effect on the market or on their fairly-gotten bottom line.

    So it's good to see some sanity in the topsy-turvy world of copyright licensing law. Now, let's hope to see that sanity spread to other areas in which it's urgently needed.