joegratz.net

Let’s say you download a song from the iTunes Music Store. Everybody agrees that you’ve made a copy of the song: it’s sitting right there on your hard drive. But, in transmitting the song to you, did Apple publicly perform the song, too?

It seems like a silly question, but some ambiguities in the language of section 101 of the Copyright Act have allowed some copyright holders to argue that Apple needs a license not only to reproduce the song, but to perform it publicly, too.

A little over two years ago, I posted about ASCAP’s attempts to license podcasting. This was surprising, since podcasts are reproductions (you download them), not performances (you don’t stream them). ASCAP argued — wrongly, I thought — that podcasts are performances, too, since they’re transmitted over the Internet to the user.

ASCAP made the same argument to AOL, asking it to take a license for the performances involved in its music download service. The dispute ended up in federal court in the Southern District of New York. (Wonks: This was a rate court proceeding pursuant to the ASCAP consent decree.)

Via Sherwin Siy at Public Knowledge comes news that the court has ruled in favor of AOL, holding that “the downloading of a digital music file, in and of itself, does not” constitute a public performance under the Copyright Act.

The statute says that to “perform” a work means “to recite, render, play, dance, or act it, either directly or by means of any device or process.” 17 U.S.C. 101. The statute defines “public performance” to includes “to transmit or otherwise communicate a performance . . . to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.”

Looking at the dictionary definitions of those words, along with the statute’s legislative history, the court found that “in order for a song to be performed, it must be transmitted in a manner designed for contemporaneous perception.”

I think that’s exactly right. The key factor is the intent of the alleged infringer, as expressed through his choice of technological means for transmitting the copyrighted work. If the work is transmitted in a manner designed for contemporaneous perception and not for storage — like streaming audio — then there’s a performance, and not a reproduction. If the work is transmitted in a manner designed for storage and not for contemporaneous perception — like downloading an audio file — then there’s a reproduction, and not a performance.

Because the raw audio data itself doesn’t tell us anything about whether the transmission is “designed for contemporaneous perception,” we have to look to metadata, file headers, and other indicia of the purpose for which the data is being transmitted. There isn’t always a clear answer to this question — consider, for example, a case in which a user clicks on a link to an MP3 file on the web when the user has a broswer plugin installed that plays back the song as it is being downloaded and doesn’t keep a permanent copy on the hard drive. But just because the answer isn’t always easy doesn’t mean we should adopt ASCAP’s bright-line rule that every transmission is a public performance.

It is to be hoped that this decision will bring some certainty to the online music licensing marketplace, perhaps eliminating the need for legislation mooting the stream-versus-download question.