[Fmpro] Thought you all might be interested in this

[Chris Alpiar]

Very interesting

I hope when they have that court case that they consider that while
technically a download is not a performance unless it is streaming at the
same time, that a download of a musical performance constitutes 2 things: 1.
intent of using the media for actualizing a performance and 2. bringing a
controlled (by the web servers host) intellectual property to an
uncontrolled environment (the downloaders pc or ipod or digital radio system
whatever) which means from that point onward there is no way to monitor
performances, at least with current technology

-----Original Message-----
From: fmpro-bounces+chris=alpiar.com at nxport.com
[mailto:fmpro-bounces+chris=alpiar.com at nxport.com] On Behalf Of James Ryan
Sent: Saturday, May 12, 2007 12:50 PM
To: fmpro at nxport.com
Subject: [Fmpro] Thought you all might be interested in this

>From the president of ASCAP:

http://www.ascap.com/press/2007/050807_court_decision.html

Dear ASCAP Member:

I am writing to provide you with background information regarding the recent
court decision concerning the existence of a performing right in a download.
It is important that you know this background so that speculation and
misinformation do not replace facts. Most importantly, I want you to
understand that every action ASCAP took with regard to this matter was
entirely driven by the goal of protecting your performing rights as a music
creator and ensuring that you receive the compensation to which you are
legally entitled.

The terms of the consent decree that governs ASCAP's operations provide
that, when ASCAP and a music user cannot agree on a license fee, the United
States District Court for the Southern District of New York will determine a
reasonable license fee after a full trial.

When negotiations failed with the three largest commercial Internet services
- AOL, RealNetworks and Yahoo! - a court proceeding began in November, 2005,
to determine reasonable license fees for their public performance of your
music.

However, in December 2006, these Internet services asked the Court to decide
the purely legal issue of whether a performing right exists in Internet
downloads, before trial on the question of fees occurred. (They conceded
that a performing right does exist in online streams of music.) The Court
agreed to do so.

Once the Internet services had brought the issue forward - arguing that no
performing right exists in a download - and once the Court indicated it
would decide the matter before trial, ASCAP had no choice but to present a
cross-motion supporting the existence of a performance right in a download
under the United States Copyright Act.

Endorsing ASCAP's position were legal briefs from: BMI; SOCAN; SESAC; the
Songwriters Guild of America, together with the Nashville Songwriters
Association International (NSAI); and the NMPA, joined by the Church Music
Publishers Association, Association of Independent Music Publishers and
NSAI.

Supporting the Internet music services with briefs against ASCAP were: DiMA
(Digital Media Association), joined by the Entertainment Merchants
Association, National Association of Recording Manufacturers, and the
Consumer Electronics Association; CTIA (the Wireless Association); and RIAA
(The Recording Industry Association of America).

The Court issued its decision on April 25, 2007, essentially agreeing with
the Internet services' argument that a download is a transmission of a
reproduction of a musical work, not a transmission of a performance of that
work. The Court indicated that the ability to simultaneously hear the music
was a prerequisite for a transmission of a performance. In the Court's
words, "...in order for a song to be performed, it must be transmitted in a
manner designed for contemporaneous perception."

The Court did, however, indicate that "Ša transmission might, under certain
circumstances, constitute both a stream and a download, each of which
implicates a different right of the copyright holder" (original emphasis).
It did not elaborate on this point, for example, by indicating what those
circumstances were.

Now that the Court has ruled on this legal issue, the proceeding will go to
trial to determine a reasonable license fee for the Internet services. The
trial is set to begin on September 10, 2007, and is scheduled to run for
three weeks. There is no way to predict when the Court will issue its final
judgment setting the license fees. However, once the Court rules on that
issue, it will be possible for ASCAP to appeal the decision regarding
downloads, as well as any other aspects of the case.

Obviously, ASCAP respectfully disagrees with the Court's decision. We
believe the law is otherwise, and must reflect the full value to these
Internet services of the music created by our members.

I hope that this information will help you understand the steps that led to
the court's decision, as well as the steps ASCAP - with the support of many
other writer and publisher groups - took, with the goal of protecting your
rights. I will certainly keep you posted on further developments as they
occur.

Sincerely,
John LoFrumento
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