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Internet Music Stream vs. Download

By Stephen M. Kramarsky

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 for the Southern District of New York in United States v. American Society of Composers, Authors and Publishers (ASCAP), 485 F.Supp.2d 438 (S.D.N.Y. 2007). 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 ASCAP), it is not actually as simple as it first seems.

ASCAP is one of three performance-rights organizations (along with BMI and SESAC) that track public performances of musical compositions, and collect and distribute royalties to publishers and composer members. Because a performance occurs every time a song is played on the radio or television, the process is extremely cumbersome and the performance-rights organizations make it possible to efficiently track, collect and distribute the statutorily mandated royalties. ASCAP functions under an amended final judgment, dating (in various versions) from a 1941 antitrust action. Pursuant to the amended final judgment, ASCAP establishes a fixed royalty rate for each type of performance of its works. Disputes over the appropriate royalty rate for a given kind of performance are adjudicated by the court that heard the original antitrust action ' often called the ASCAP rate court ' if the rate cannot be decided between the parties. These rate disputes still appear under the original 1941 'Civ.' docket number in the Southern District and Judge Connor presides over these cases.

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