[Fmpro] Judge: No Performance Right in Downloads

[Mark Northam]

Sadly, another whopping legal loss for ASCAP. Only history will tell whether
this one will cost composers more than the last memorable one of this
magnitude, the Alden Rochelle decision in the 1940s where ASCAP's arrogant
attempt to triple the seat tax in movie theatres led to the catastrophic
loss of their ability to collect ANY performance royalties for films shown
in movie theatres.

Personally, I have to question ASCAP's tactics in this one...

* Going it alone, rather than publicly combining forces with BMI and SESAC
in joint effort to establish this precedent (I'm sure BMI and SESAC were
helpful behind the scenes though).

* Arrogantly going for the "whole enchilada" in trying to get all music
downloads characterized as public performances, rather than some sort of
phased approach. This is the same kind of ASCAP arrogance that lost
composers performance royalties in movie theatres in the '40s and led to the
shutout of independent candidates in the ASCAP Board elections. Won't these
people ever learn?

* Focusing only on music downloads, yet the precedent in the decision would
clearly now apply to audiovisual works (film/TV), and choosing to go up
against three of the best funded companies - AOL, Yahoo, RealNetworks - who
had the budget to hire top legal talent.

* Allowing continued attacks on their position by their opponents -
especially the RIAA and DiMA - that were made in a public forum - go
unanswered.  Why wasn't ASCAP willing to defend itself in the court of
public opinion? 

But then again, let's look at the bigger picture - is the idea of a "royalty
based" business model on the way out, hastened by the advent of technology
which makes the transfer and copying of music simple and the ever-present
availability of "free music" both online and from composers willing to work
for free just for exposure?

Time to re-think the traditional composer business model...

Best,

Mark Northam