Whether downloading a song from the Web should be considered a performance is much contested. So far, the courts have sided with digital media companies.
In 2005, ASCAP entered into a rate-court proceeding to set licensing fees for the music services of Yahoo, AOL, and RealNetworks. A U.S. district judge for the Southern District of New York delivered a blow to composers and songwriters by ruling that downloading music from a Web store was not a music performance. On the other hand, the judge found that streaming music was subject to a performance fee.
“The songwriter gets a performance fee if the song is streamed without the video,” Carnes noted. “But if it is downloaded within an audio-visual work like a movie we don’t get a performance fee–same song, no money.”