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"There's a new dustup in the long and rocky transition to digital music publishing. This time the industry has its sights on collecting performance fees for downloads of music, film and TV as well as licensing fees for the 30-second song samples Apple uses to let iTunes customers preview tracks.\nCNet reports that the two major agencies in charge of collecting royalties in the U.S., ASCAP and BMI, have been unsuccessful to date in negotiations on these points with electronic music retailers. They've since begun lobbying Congress to pass legislation that would require any music retailer selling downloads to pay a performance fee.\n\nPerformance fees are typically collected when music is performed in public: at radio stations, in restaurants, in sports stadiums and other venues for example. The argument that ASCAP and BMI are trying to make is that downloading a song from the web should be considered a performance and thus subjected to this fee.\nThe courts thus far have not been favorable to this argument. Past rulings have tended to side with music retailers, with a precedent-setting ruling from a U.S. district court finding that streaming music should be subject to performance fees but not downloads. ASCAP has since appealed the decision, with the case returning to court later this year.\nThe royalty agencies are also going after performance fees from downloads of movies and TV shows. The argument goes that when music is included in film or TV that is shown on broadcast, cable or satellite, a performance fee is collected. So when that same TV show is downloaded over iTunes, music industry representatives say, they should also be subject to this performance fee.\n30 Second Song Clip Licensing\nLastly and likely even more controversially, the licensing agencies are going after licensing fees for the 30 second track previews used by iTunes to give customers a taste of the music they presumably may want to buy. Apple has obtained the necessary legal licensing to use these song previews, but music publishers complain that no money changed hands in the deal \u2014 and they want their pound of flesh.\nWe tend to agree with Jonathan Potter, executive director of the Digital Media Association that represents web-based media services like Apple and Pandora: \"They aren't getting paid for the public performance in a download because there is no public performance in a download.\" How is a download a public performance? When I click the \"buy now\" button my friends don't spontaneously gather 'round to hear the glorious \"ding\" sound of a completed transfer or anything. It will be a hard argument to make, and the courts seem at least initially to agree.\nAs for the 30 second samples brouhaha \u2014 since when did it become smart business to spend time and money actively preventing your potential customers from finding out if they want to give you money or not? It's unfortunate that in the shift to a digital media ecosystem licensing agencies are getting squeezed, but some of these tactics reek of desperation. \nWhat do you think: does the download of an MP3 file constitute a performance? Should Apple be forking over money to ASCAP and BMI for track previews? Let us know your thoughts in the comments."^^<http://www.w3.org/2001/XMLSchema#string>
<http://mashable.com/2009/09/17/mp3-performance-fee/>