It Takes A Court To Explain That Downloads Aren't Public Performances?

from the time-to-rewrite-copyright-law dept

Thu, Apr 26th 2007 2:47am — Mike Masnick

It's no secret that copyright law is a bit out of step with the times these days, and probably could use a massive rewrite. The problem is that Congress is continually retrofitting it with changes and additions that tend to lead to even more problems and certainly don't make the system any better prepared to deal with ongoing changes in the content marketplace. Take, for example, the latest court battle, where performing rights organization ASCAP tried to claim that music downloads from online services should count as "public performances." Why? Because copyright law allows for performance rights, meaning that if downloads are performances, ASCAP can collect more royalties for each download. This is mainly because performance rights can be negotiated (or denied), while other rights are compulsory. Luckily a federal judge had a bit of common sense and pointed out that downloads are not public performances, though there will likely be a series of appeals on this issue. The key point is that the inability of copyright law to flexibly deal with digital music and networks means we're only going to see more attempts like this one where stakeholders try to squeeze more money out of the system through legal loopholes, rather than through providing more value to music consumers.

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19 Comments

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Anonymous Coward, 26 Apr 2007 @ 4:36am

I am first
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Ronald Rios, 26 Apr 2007 @ 4:42am

I'm REALLY tired of this shit. Stop tryin' get more coins with music, man! Jesus.
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Tarky7, 26 Apr 2007 @ 5:01am

3rd
That Damn Internet Thingy just won't go away !

We better do soumtin' about it, and raght quick !
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Wolfger, 26 Apr 2007 @ 5:06am

It is unbelievable that they even had the gall to claim a download was a public performance. A downloaded song is no different from a song on a CD.
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Sanguine Dream, 26 Apr 2007 @ 5:13am

The next step...
would no doubt have been to claim that buying a CD at the store would also count as a performance.
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Vincent Clement, 26 Apr 2007 @ 5:19am

Re:
I think you mean that buying a song via a download service is no different then buying a CD in a store.

And all these trade organizations wonder why people are using p2p to download music. Consumers only have so much money. The industry has changed - unfortunately, the companies haven't.
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vicven2, 26 Apr 2007 @ 5:23am

they may have a point, but hardly
not to defend them, but it MAY have a bit of truth in it.

I mean, when you broadcast a song, it counts as a performance, right? if it does, then they may be thinking that downloading is akin to broadcasting, and thus count as a performance.

It's hardly a leg to stand on, and I definitely don't agree with it, but it is possible. Especially using their crazy minds. And if they would have been approved, that does mean that ebooks, and all other electronic merchandise online are performances?
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Whatever, 26 Apr 2007 @ 5:29am

It's Too Bad...
...that these people can't/won't/don't realize that they are flogging a dead horse.

If you build it, they will come.

That isn't just true of ballfields in cornfields, if the music industry would present me with an alternative that brings me value for my entertainment dollar, allows the artist to earn a living, and allows me the freedom to use and move that content as I see fit, I'll buy & buy & buy.

But they don't, so I don't. Instead I spend my money at places like: Amie Street
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deathspal, 26 Apr 2007 @ 5:40am

Re:
Ya except a downloaded song is not likely to install a root kit on your machine... *rolls eyes at sony*
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John K. Doe, 26 Apr 2007 @ 6:07am

Just for the record, its ASCAP's job to..
try to get money for its artists - they represent the artists, not the roeocrd companies or the "music industry". Their arguement may or may not have merit, but they are just trying to make sure artists are left out in the cold in the digital world.
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John Doe, 26 Apr 2007 @ 6:11am

Re: Just for the record, its ASCAP's job to..
Opps - early day-- NOT left out in the cold
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Chronno S. Trigger, 26 Apr 2007 @ 7:31am

Re: Just for the record, its ASCAP's job to..
OK taking your argument as "artists are not left out in the cold" like you replied.

If ASCAP was just for the artists then they would already know that downloading a song from AOL/Yahoo/Real is just like going out and buying a single from Wallmark/Kmart/Target and would have never brought up this issue. There just trying to stop the progress of downloadable music that they can't control as easily as physical media.
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Joe Schmoe, 26 Apr 2007 @ 7:41am

"Ya except a downloaded song is not likely to install a root kit on your machine... *rolls eyes at sony*"

given 'em time. they may not succeed, but they'll try...
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Anonymous Coward, 26 Apr 2007 @ 7:47am

Re: they may have a point, but hardly
I mean, when you broadcast a song, it counts as a performance, right? if it does, then they may be thinking that downloading is akin to broadcasting, and thus count as a performance.

the key word here being "broadcast"

so if we are talking about an online radio then you can call it public performance.

but when you are downloading music from HMV dgital or Itune public performance doesnt apply cause those are just Online stores.
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King, 26 Apr 2007 @ 8:02am

F-xx Them
Yeah, I'm an artist and for downloading music... For one, a lot of us consumers are too poor because Bill Gates is hording our money. Of course you can bundle in GWB's family, his friends in the oil biz, all the uber large companies with CEOs with million dollar salaries. I want people to download my tracks because money is so hard to come by these days you really REALLY need to know you are going to like something before you spend twenty bucks. Welcome to the decline!
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Brad Eleven, 26 Apr 2007 @ 8:21am

why DL == performance 2 them
The actual rationale (using the term loosely) that ASCAP lawyers used for equating a download for a performance was that--in some cases, mind you--the song can be listened to while it is downloading.

Plumbing the depth of ridiculousness in this claim is left as an exercise to the reader.

It becomes more and more obvious--that is, obvious in the sense of obscuring everything else--that it's "game over" for the music industry. They and their lawyers are doing the equivalent of a child's idle rattling of an amusement machine, after s/he has no more money to spend. While there may be the occasional coincidence of some sound or flash in concert with the child's attempts to get more, there really is no more to be had.

You can be assured that entertainment lawyers are busy looking for more footholds, however slim, on which to stand as they file more suits. See also SCO, who also has no product but wants to make money through litigation.
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Mark, 26 Apr 2007 @ 10:36am

Performing Artist
Does that mean my FTP server is a performaning artist? Maybe I better hire an agent for my Linux PC.
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Charles Griswold, 26 Apr 2007 @ 11:29am

Re: why DL == performance 2 them
The actual rationale (using the term loosely) that ASCAP lawyers used for equating a download for a performance was that--in some cases, mind you--the song can be listened to while it is downloading.

Plumbing the depth of ridiculousness in this claim is left as an exercise to the reader.

Alrighty then. If downloading is a performance because you might be able to, under certain circumstances, listen to the song as you are downloading it, then what of radio broadcasts? Most people do listen to the music as it's being streamed to their radio, and like live performances (and unlike downloading) the radio is not primarily designed to make a permanent recording on the user's personal media.

Yeah, that's it. The ASCAP should be going after those nefarious radio stations, thinking they can stage 15 live Madonna performances a day without fairly compensating the performer. Who do those $*#!! radio stations think they are?!
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tatere, 26 Apr 2007 @ 4:33pm

truth is not the point
"A *radio* broadcast is not a performance. But an *internet* "broadcast" (a stream) IS a performance. Because, uh... it just is! Now give us our money!"

That is current US law in a nutshell. Obviously whether or not it makes sense is not relevant.
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