ASCAP Seeks To Destroy The Music Download Business By A Move In A New York Federal District Court

There is a major fight brewing between different segments of the music business: ASCAP and the RIAA and the record companies: ASCAP has filed a motion seeking an order from a New York Federal Court to declare all downloads of music as public performances, giving ASCAP, BMI and SESAC a piece of the action in private download transactions, such as from iTunes or Rhapsody (http://www.ascap.com/press/2007/030107_transmissions.html). The matter has been set for a trail to begin May 21, 2007.

"'For a decade ASCAP and BMI have successfully preyed on less-confident or underfinanced companies that were willing to pay double-dip royalties. Now, however, we are confident that a judge will finally end this travesty.'" said the DIMA in an interview published by Film Music Weekly (http://www.filmmusicweekly.com/issues/Film_Music_Weekly_031307.pdf ).

Don't be so confident.

The US Registrar of Copyrights came out against ASCAP's assertions: "...no performing rights on Net Music Downloads is "common sense and sound policy."

If ASCAP gets its order, it could kill the music download business; the RIAA and its record biz constituency need that business to survive since the selling of compact discs is no longer the principal means of distribution of recordings. The RIAA and SoundExchange haven't fought to impose costs on the internet distribution of music long and hard so that ASCAP can waltz in and muscle in on their action. Take heed Cary Sherman: you don't want to let ASCAP piggyback on your work.

Another potentially great danger: invasion of privacy. ASCAP might have, or seek access to consumer records of downloaders on iTunes and other services. ASCAP's access to such private information is like having Al Queda in charge of air traffic control over Manhattan.

ASCAP generally gets whatever it wants from federal "rate court judge," William C. Conner who is ruling on the motion. Check the record.

Give ASCAP a little peek around the download door and it'll be the elephant in the room.

The anti-ASCAP forces might consider recusing Judge Connor from hearing the matter and seek to have it assigned to a different judge or venue. Two federal statutes provide for recusing a judge in a federal case (US. VS. ASCAP).

The record industry might move to have the matter assigned to a judge who doesn't deal with the PROs but it still needs to challenge Connor in this instance. There is more to this than mentioned here, for that, contact the author privately.

This is like one arm of a mega-conglomerate like Time-Warner (in the form of its music publishers Warner Tamarlane or Warner Chappel) fighting with another arm of the mega conglomerate: for example, Warner Brothers Records) which could destroy the music download platform because consumers will end up paying ASCAP's bill; I doubt that consumers will pay that extra attributable to the "public performance royalty" on a download. iTunes could be at risk and Rhapsody.

Truly, this is a political battle between different segments of the music business fighting over the golden goose and the loser could be the music business and consumers.

In addition, the Alden-Rochelle vs. ASCAP case might be a legal precedent against ASCAP. Also: An analysis of recording contracts insofar as the performing rights of the composer/publisher of the music at issue being licensed previously, in the recording contract to the record company which don't have to be licensed, again from ASCAP.

ASCAP, after all, licenses copyrights, not music; in essence, it grants a right to a broadcaster/transmitter not to be sued for copyright infringement. But companies like iTunes are already licensed to upload recording, and that license can include the copyright in the underlying music. A licensee with a copyright license cannot be sued for copyright infringement. If the uploading company is the copyright owner itself (as in a movie company offering downloads of their movies and music) it cannot sue itself (i.e.: Time-Warner vs. Time-Warner as an example).

ASCAP, essentially, wants to kill the golden goose. They say they're fighting for their members, but if a platform for distribution of music and making money dies because of ASCAP, what has been accomplished?

ASCAP sees a source of money and wants its lucre. The record biz doesn't want to pay that and it does not want to have to pass that ASCAP charge on to consumers because consumers will balk at paying it.

How much will a 99 cent download go up in order to pay ASCP/BMI?

A lot is at stake.

P.S: THE ASCAP MOTION WAS HEARD APRIL 25, 2007. JUDGE WILLIAM C. CONNOR RULED AGAINST ASCAP.

*******Caveat: all statements in this article are the opinions of their author and not intended as legal advice or counsel; no warranty or representation is made as to the accuracy of such statements. Should you desire legal representation, you should hire an attorney of your own choosing. For more information, you may contact the author privately. BRIAN LEE CORBER is an attorney practicing law in Los Angeles, California for nearly 30 years. He has been emphasizing music business matters since the late 1990s and follows the news in the music world, which is constantly changing, daily. He can be reached at CORBERLAW@aol.com