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ASCAP/Pandora war notes: is online radio really still “new media”?

#pandoraBy now everybody knows that Pandora has prevailed, at least for the moment, in its legal effort to win the right to stream all content from the ASCAP repertory. The Southern District of New York has ruled that efforts to limit what Pandora can play violated a consent decree between the online streamer and the rights holder organization. Various music publishers, including EMI and Sony, had pulled “new media” content rights in a bid to negotiate directly with online services. Pandora argued that ASCAP shouldn’t allow this and has won.

Meanwhile I am scratching my head as I make my way through ASCAP’s cavernous definitions of “new media transmissions” and “new media services,” which were evidently the categories that music publishers attached to Pandora in their bid to limit its access to ASCAP content. You can drive a digital truck through this text. And are Pandora et al., really “new media” services anymore?

Here is the “new media” language. Gird thy loins and read:

First, ASCAP defines a “new media transmission” as “a digital audio transmission that, in addition to requiring a public performance license, also requires the Music User to comply with the license requirements of 17 U.S.C. §114, §115 and/or §106(1).” Don’t be intimidated by the statute numbers. We’re talking about exclusive rights definitions, compulsory licensing, and similar rules. Nothing shocking so far.

But second, “new media” can also mean:

(ii) a digital transmission of a music video or a user-uploaded video (i.e., a video uploaded to the Service by the end-user) that, in addition to requiring a public performance license, also requires that the Music User, in order to offer the music video or user-uploaded video on or via the Service, obtain a license directly from the owner or administrator of the rights in the musical composition(s) embodied therein for rights other than the right of public performance (e.g., synchronization or mechanical rights); or

(iii) a digital transmission made from a digital music file either (a) uploaded by an end-user to the server and/or (b) matched from a file on the end-user’s computer or device to a digital music file on the Service’s server (such server, in either case, often referred to as either the “cloud” or a “locker”).

The aforementioned is probably referencing YouTube and/or SoundCloud and similar venues. Third:

A “New Media Service” shall mean any standalone offering by a “Music User” (including, without limitation, by any “On-line Music User”) by which a New Media Transmission of musical compositions is made available or accessible (i) exclusively by means of the Internet, a wireless mobile telecommunications network, and/or a computer network and (ii) to the public, whether or not, in exchange for a subscription fee, other fee or charge; and whether or not such offering includes exposure to advertisements before, during and/or after the transmission of such compositions.

The “subscription fee” mention presumably activates Pandora’s incorporation into this definition. BUT, fourth:

The term “New Media Service” shall specifically exclude transmissions made by any “Broadcaster” . . . who is transmitting Works in ASCAP’s repertory . . . both (x) by means of the Internet, a wireless mobile telecommunications network, and/or a computer network, and (y) over the air, or via cable television or direct broadcast satellite, or via other existing or yet-to-be developed transmission technologies to audiences using radios, television sets, computers, or other receiving or playing devices.

So if you are doing radio via the Internet AND via AM/FM you are cool. It is only if you are streaming solely via the ‘Net that you suddenly become “new media.” This would explain some of Pandora’s interest in the acquisition of “Hits 102.7 FM” in Rapid City, South Dakota, and ASCAP’s bid to stop the purchase.

This all strikes me as a whole lot of artifice. New media? Pandora is more than a dozen years old. YouTube is looking at a decade in 2015. Obviously ASCAP sees it differently, and is doubling down for the big Southern District Court showdown on rates scheduled for early December.

“ASCAP looks forward to the December 4th trial,” a statement proclaims, “where ASCAP will demonstrate the true value of songwriters’ and composers’ performance rights, a value that Pandora’s music streaming competitors have recognized by negotiating rather than litigating with creators of music.”

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