"Songs That Aren't Played Aren't Performed

DiMA's Jon Potter champions court ruling on sound recording downloads in Billboard Op-Ed

(published July 25, 2009)

The Unheard Music

When you buy a CD or DVD, part of the purchase price goes to pay the songwriter who created the music. In return for a royalty payment the CD or DVD producer may reproduce and distribute the music, and consumers need not pay when they privately enjoy the purchased recording or movie.

When you buy a digital download, the same scenario should apply, since the only change is the nature of distribution. But ASCAP, BMI and SESAC are asking for more money - from producers, digital retailers and perhaps even consumers - simply because the product in question is digital.

Performance rights organizations are asking courts and Congress to require “public performance” royalties when music is digitally distributed in sound recordings, ringtones, and audiovisual works.  In each instance the reasoning smacks of desperation - no surprise, since this double-dip royalty demand has been authoritatively rejected several times. But the organizations soldier on, hoping that the axiomatic plight of the starving songwriter prevails over law, logic and rational public policy.

Every P.T. Barnum needs a pitch, and that of the performance rights organizations is both simple and bold:  when music is transmitted digitally, even if the digital file is not opened and the song is not heard, a “public performance” has occurred.  Somehow the PROs believe that an actual performance is not a necessary component of a “public performance.” The subplots are similarly creative:

• PROs claim that a transmission of a digital file is legally a performance because the intent is that the music will eventually be performed by a consumer. Of course all recorded music is intended to be performed, but no one has suggested that selling a physical product equals a “performance.”
• PROs claim that downloads substitute for royalty-generating broadcasts, so technological parity demands that Congress require download firms to pay “make-up” fees. This is tantamount to Congress requiring Henry Ford to pay buggy whip manufacturers. Moreover, the PROs ignore that digital download producers have already paid full-value royalties to the same songwriters and music publishers that PROs represent, and if movie music writers want more money they can simply refuse to license when negotiating with producers.

Fortunately, the U.S. Department of Commerce (1995), the Register of Copyrights (2001), and a federal court (2007) have concluded that digital downloads are the technological, economic and legal equivalents of reproduction and distribution, and - absent the music being “rendered” or “heard” - a performance has not occurred. This does not mean that songwriters have not been fully and fairly paid for mechanical rights, synchronization rights, and reproductions and distributions of their music; it simply means that if human ears cannot possibly hear the work then it has not been performed, and no additional “public performance” royalty is justified.