back to article Downloads are not performances, rules US court

A music download is not a performance of a work and therefore does not demand an additional licence and fee, a US court has ruled. A stream of a file is a performance, though, the court said. The US Court of Appeals for the Second Circuit ruled on a case in which music rights body ASCAP was suing Yahoo! and Real Networks over …

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Greedy *#!*.!*#* !!!

Greedy music industry, they're trying to get more moeny from people promoting their music.

Without Real Networks and Yahoo they would undoubtably make less money in the first place

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FAIL

Streaming = Download

I always find these arguments silly. One can easily use VLC or whatever to play a media file as it downloads. Similarly, one can also dump a stream, live or otherwise, to a file. Whether you like it or not, the data has to pass through your machine one way or another. They'll try to use DRM to combat this but even that can be broken for the same reason.

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Indeed

Which is why the provider should know exactly what theyre offering and what it constitutes.

Any deviation from that by the end user falls within other areas of copyright and unlicensed use of material.

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FAIL

Humm

So If I download the song and play it later the download is not a performance.

.How much later.

1 Hour..

1 Minute.

1 Second.

1 Nano Second.

If it's either of the last two then I could probably write the streaming software to stagger the start.

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Anonymous Coward

Reply to post: Humm

From the quote from the judge, it should require you to have completed the download before beginning to play the song for it to not count as a performance. Otherwise, buffered streams would not count as performances either. But IANAL, I have common sense.

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Coat

So what happens...

...if I record a stream to my hard disk with the volume turned down?

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First you have to answer the question

if a tree falls in the forest...

A stream is treated as a one shot performance, a download is like Amazon shipping you a CD and not a performance.

All the what ifs just confuse things and can be applied to anything. What if you record the radio or a live performance, or copy a CD and sell it, loan it to a friend. What if you play a CD in your car with the window down...

What they really want is everything to be pay per play, but since there is no way to do that they are trying to collect money for everything no matter how much they have to bend things to justify it.

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Happy

Blimey!

Common sense peeks above the threshold once again!

Next- Drawings of people are not people and do not have rights...

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But drawings of children

can still get you on the sex offenders register.

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WTF?

Streaming - A performance...???

What about when you save a stream instead of playing it in a player?

(Maybe most people don't know that you can...)

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Joke

RE: volume turned down

"So what happens if I record a stream to my hard disk with the volume turned down?"

After 4 minutes 33 seconds you get a writ from the estate of John Cage

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Pint

Question: Is a streamed media file by a dead performer ...

a download or a performance?

This could mean that Elvis is really still with us!

Great!

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No common sense around these parts...

People, use your brain: when the court is talking about "streaming = performance", they mean when a person is actually listening to an audio transmission as it is being delivered to their device. It is a common sense and not an esoteric or purely technical definition of streaming.

The same with "download != performance", they mean when the file is transmitted for storage and not actually perceived by the person during transfer.

It doesn't matter whether the button or the function in the application is called "stream" vs. "download". If you are "downloading" a music file and use some sort of mechanism to decode it in transit and play it, then that's streaming.

If you "stream" a music file and it is actually rendered by your computer into an audio signal, then it doesn't matter if you decided to turn down the volume. Just like with a radio, it is broadcasting whether you are listening to it or not. The intent of the function is what counts: the broadcaster intended that transmission to be heard, and therefore requires a performance license.

Geeks, pshaw!

-dZ.

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If that's true then.

Anyone who uses an app other than the Real Player (or similar) that simply records, without playing, the stream can then be said to not have caused the music to be performed?

Interesting.

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I think we're looking at it from the wrong angle.

Nobody gives a crap what we merry band of geeks DO with the data. It's from the ISP angle. A stream is offered on the expectation that it will be watched in realtime. Thus a performance. Thus performance rights. A download, on the other hand, is not offered for realtime viewing, thus it is not a performance. Make sense?

No... not really... ;-)

.

To be honest, I think the performance rights thing should be abolished. If I download Chihiro Onitsuka singing her song at Bodukan, how is this not a performance? She performed a live concert. It was recorded. I'm watching it. There might have been eight or so years in between the sound passing from her mouth and entering my ears, but it's still me watching her perform, is it not?

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Re: If that's true then

Did you read and understand my post? It is the intent of the transaction that matters, with the onus on the distributor.

If a radio station broadcasts music for people to listen to, they pay a performance license whether their audience decided to connect their receivers to a tape-deck without speakers or whether they actually listened to the broadcast. The radio is in the business of broadcasting audio performances and therefore pays for this.

If it is the case that nobody is listening to the radio broadcast, only recording it for later playback, then the transaction is not a performance--but the radio station has no way of knowing this a priori, so they are still paying for it. At this point they (perhaps with the "encouragement" of the Federal Communications Commission, RIAA, and their advertisers) would likely need to revise their business model and change their licensing to one of retail, rather than performances.

Do you really not see the analogy with digital music files? If your site "streams" music for live listening, then you pay for a performance license, whether your users are listening or just downloading with the speakers off. If it happens that most of your "listeners" are not actually listening to the broadcast but downloading it, then you are in need of revising your business strategy. And again, some very intricate regulations and agreements come into play that may also affect or precipitate this revision.

-dZ.

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FAIL

Wow

I don't think I've ever read that much useless hair splitting in a comment thread.

The rules can only take into account what the process is MEANT for. IE download==copy, streaming==broadcasting over the Internet.

It doesn't matter what technology allows you to do on TOP of or INSTEAD of what the process is MEANT to do!

FF

http://www.theregister.co.uk/Design/graphics/icons/comment/fail_32.pngS...

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I think a lot of people are getting this backward...

IANAL and all, but I believe the determination of performance is based on the distribution, not the end listener. So if I am hosting a streaming site, I have to get a performance license no matter what the end user does with the stream. The same would apply if I held a concert/reading/whatever and you didn't actually show up but recorded the event. I would still need a performance license.

If I am hosting a download site, I don't need a performance license since I am not intending to openly perform the work. If you listen to it while it downloads ("stream it") that does not create a need for a performance license.

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The unaddressed problem

Is that after the download, when you DO play the download back IS actually a performance. The rights company wants to get $$$ from the "little guy" when that eventually DOES happen. The problem is that since the "little guy" (the one with an IPOD) has no money anyway, there is little chance, thus the attempt at download time.

Yes, it is all grubbing for money, and the rights holders ASCAP, BMI, SESAC (among others) are looking for ANYWAY to get their hands on some money. Maybe we should all go back to player pianos where this all started.

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Previews

Oh dear, just about every download site has a short 30-seconds-or-so preview of each track, which is STREAMED to you, hence that specific action is a performance. I hope they are licenced etc.

But another angle - since it is me that clicks on 'play stream' or whatever, then surely it is my performance, since I initiated the sounds i.e. without me there would be no performance, hence it is my performance. Luv it.

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Anonymous Coward

The PRS in the UK use the "dubbing fee" route to charge

In the UK the PRS charge you for transferring a file from one hard disk to another, even within your own datacentre. They call this the "dubbing fee" (brought to you by the same arcane set of rules that includes automatic charges for broken bakelite records) which significantly impacts the economics of providing background music and jukebox systems, contributing to their downfall.

I've had a few stabs at creating commercial home music systems, but unfortunately the sheer bloody-mindedness and greed of the music industry has killed each one (e.g. "we want 50% of the end-user fee" / "but the profit margin is only 10%, we'd make a loss on each unit" / "we don't care")

They may have let up on suing individual users, but they're still utter utter shitbags to people trying to provide commercial services.

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Logical

This is a logical, rational decision. If a download was considered a performance, it could be equally argued that the mailman delivering a CD by post was also a performance.

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Anonymous Coward

@Charles E /// @AC PRS

which raises another point: if ISPs are required to collaborate with copyright holders and report "potential" infringements, why does that _not_ apply to the mailman? If I print-out a file from my network and put it in the mail, the mailman delivers it to my colleague who scans it and reconstructs the file on her network, then the mailman _IS_ the ISP ...

Does the post office pay performance licenses for delivering DVDs? No; so an ISP should not pay performance licenses for downloads. On the other hand, the post office doesn't snoop on mail (well, not without a warrant, one hopes) and has no liability if you post something that is breach of copyright; the media "industry" claims ISPs should have such a liability - but won't go after the post office on the same basis as it's too big a target. Not doing so however proves the illogic in their position.

@AC The PRS / PPL / VPL are not acting in the best interests of the music industry but in the best interests of themselves; crippling any business that has the potential to break the PPL/VPL/PRS cartel is clearly anti-competitive behaviour that should result in their break-up, but won't.

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