ASCAP Loses Major Music Download Appeal Case; Blanket License Fee Calculation Remanded to District Court
Is a song download a public performance?
In a strongly worded opinion coming out of the US Second District Court of Appeals last week, the court ruled against ASCAP and remanded the case, which involved Real Networks and Yahoo.
The court (decision available here in full text via Film Music Magazine) analyzed existing copyright law and precedent extensively. The meaning of the word “perform”, defined in Section 101 of the US Copyright Act as “to recite, render, play, dance or act it, either directly or by means of any device or process,” had a significant impact on the decision.
As Film Music Magazine noted, the decision “in large part hinged on the fact that a download does not include a ‘contemporaneously perceptible event’ – that during a download, the musical work could not be heard or listened to.”
We’re looking forward to seeing how this decision will impact our new media and technology clients, for whom the difference between a download and public performance can sometimes mean thousands in royalties.
German Rights Society GEMA Squeezes YouTube
The fight between YouTube and the German collection society GEMA is heading into the next round. GEMA announced today (Sept. 30) that they will file a case for principal proceedings in the next few weeks against YouTube. GEMA’s legal challenge aims to prevent YouTube from making 75 compositions available online. The video site’s license with GEMA expired March 2009. Negotiations for a new agreement have stalled.
- GEMA and YouTube to return to court
It’s interesting to note that YouTube was able, on the other hand, to reach a deal with French collection society SACEM. That deal applies retroactively to all works since YouTube’s launch in France in 2007.