Digital media trade association slams ASCAP royalty grab

[Digital Media Association statement]

The Digital Media Association (DiMA) last week submitted a ‘friend of the court’ brief opposing a claim by the American Society of Composers, Authors and Publishers (ASCAP) that digital music downloads are ‘public performances’ and should, therefore, be subject to a public performance license and royalty. DiMA’s brief was co-signed by several associations – the National Association of Recording Merchandisers, the Entertainment Merchants Association, and the Consumer Electronics Association. Additional briefs opposing ASCAP’s claim were submitted by the Recording Industry Association of America and the Cellular Telecommunications and Internet Association.

“ASCAP’s assertion in federal court that digital distributions of music and video are also public performances confounds legal, business and technological reality,” said Jonathan Potter, DiMA’s Executive Director. “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.”

DiMA members pay television, motion picture and sound recording producers hundreds of millions of dollars annually for the right to digitally distribute their copyrighted content, including the incorporated musical works. These synchronization, reproduction and distribution licenses, including “mechanical” licenses associated with sound recordings, are appropriately paid when musical works are used in audiovisual productions and sound recordings and are distributed to consumers – in physical or digital form. DiMA members also pay music publishers and songwriters (through ASCAP, BMI and SESAC) millions of additional dollars for the right to publicly perform musical compositions using streaming radio and video services.

ASCAP and BMI claim that a download or even its “transmission” to a consumer – even if the media file is never opened and made audible or visually perceptible to the recipient – is a “public performance” that justifies an additional license and royalty. “This sophistry is based in fear – that ASCAP and BMI will have no service to offer publishers and songwriters if direct-to-consumer distribution substantially eliminates subscription or advertiser-based performance media,” stated Potter. “This fear seems unwarranted, but regardless, the law clearly states that a transmission justifies performance royalties only if the transmission is of a ‘performance.’”

“If ASCAP prevails its double-dip scheme will inflict an unfair and discriminatory cost burden on innovative online music and media services and our creative partners in the sound recording, motion picture and television industries,” Potter continued. “This result would inhibit the growth of legal, consumer-friendly digital media, and would in turn promote piracy which remains our toughest competition.”

Background: Pursuant to its longstanding consent decree with the U.S. Government, ASCAP initiated a royalty rate proceeding in the Fall of 2005, and asked the court to set reasonable royalties for online music performances made by AOL, Yahoo! and RealNetworks. The trial is scheduled to begin May 21, 2007 in the U.S. District Court, Southern District of New York. The Judge has indicated he will rule before trial on the summary judgment motions that are the basis of DiMA’s amicus.

-----------------------------------------------------------------------------------------------------------

DiMA is the only trade organization devoted exclusively to meeting the needs of digital media artists, consumers and producers. DiMA represents companies that develop and utilize digital technologies that enable and provide Internet music and video content. DiMA always supports fair payment to artists and creators. For more information visit www.digmedia.org.

article originally published at http://www.digmedia.org/content/release.cfm?id=7216&content=pr.

The media's job is to interest the public in the public interest. -John Dewey