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Ruling: A Download Is Not a Performance

By Stephen M. Kramarsky
June 28, 2007

If a music file is downloaded to a computer, and no one is there to play it, does it constitute a performance? This is not some question from a digital-age freshman philosophy seminar ' it was the legal issue recently facing Judge William C. Connor in the U.S. District Court of the Southern District of New York in United States v. American Society of Composers, Authors and Publishers ('ASCAP'), Civ. No. 41-1395 (WCC) (April 25). (At press time, the decision was not yet on Westlaw, but a copy is available at www.publicknowledge.org/pdf/aol-v-ascap-order-20070425.pdf.)

Faced with this issue, Connor found that a digital download alone, as distinct from a digital media 'stream,' does not constitute a performance. While this decision seems obvious and has been widely viewed as correct (by everyone other than the American Society of Composers, Authors and Publishers ('ASCAP')) it is not actually as simple as it first seems.

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