Downloading versus Streaming of Music

It's not directly on point for our problem regarding the K Cera Cera case, but in United States v. Am. Soc’y of Composers, Authors and Publishers, 485 F. Supp. 2d 438, 440-47 (S.D.N.Y. 2007)(Conner, J.)(pdf), the court held that an internet service that supplies downloads of a "digital music file embodying a particular song does not [engage in a] 'public performance' of that song within the meaning the United States Copyright Act, 17 U.S.C. § 101, et seq." Slip op. at 1. In contrast, [s]treaming . . . allows the real-time (or near real-time) playing of the song and does not result in the creation of a permanent audio file on the client computer." Id. Streaming does constitute a "public performance." Id. An activity that constitutes a "public performance" triggers the obligation to pay performance fees to the copyright owner of the song.

Thus, Pandora Radio, one of my very favorite sites, objected strongly to the Copyright Royalty Board's decision setting rates for webcasting of music (pdf). According to The Confessions of a Mad Librarian (among others), " many feel will [CARP's decision will] stagger commercial webcasters and beggar small, non-profit webcasters (think of the web-based streaming and archived audio of your favourite college radio station) into shutting down entirely."

Joshua K. Knobler, Performance Anxiety: The Internet and Copyright's Vanishing Performance/Distribution Distinction, Cardozo Arts & Entertainment Law Journal, Vol. 25, Issue 2, addresses matters pertaining to these issues.