ASCAP's Aggression Risks Stifling the Music Industry


ASCAP, the American Society of Composers, Artists and Performers, stands proud that it "protects the rights of its members by licensing and distributing royalties for the non-dramatic public performances of their copyrighted works" as stated on their web site. However, over the last year or so, many news stories have been released about ASCAP's aggression against everyone from cell phone companies to iTunes to small web sites. These increased aggressions place the musicians in a dangerous position where, rather than embracing technologies changes to further their sales, the artists may be losing their market share by silencing the technology that would promote them.

ASCAP's first target in their campaign against technology was the cell phone industry, citing the use of songs as ringtones as a public performance of an artist's songs. As a result, ASCAP believed they qualified for a cut in the sale of every ringtone. Please note, the cell phone companies are already paying a licensing fee for using the songs, however, ASCAP believes a further payment should be made because the ringtone is a "public performance." The case was eventually thrown out by a judge who ruled that no public performance was involved in a cell phone ringing.

While the judge may have ruled in favor of the cell phone companies, it begs the question, what was ASCAP's goal? People don't opt to listen to a thirty-second clip of a song instead of purchasing it, instead, the 30 seconds might serve as a tease that will pique a listener's interest and lead them to go purchase the song the next time they are at their computer. What's more, the cell phone companies already pay licensing for the songs, so profits are already being generated for the music industry when users purchase songs. As such, it seems ASCAP's only possible goal here was to stifle the promotion of their artists by stopping people from playing their artists 30 second clips, or at least requiring that they be paid more for the clips (which would likely get pushed off to the consumers, increasing the cost of these artists songs and thus, decreasing their sales/promotion).

ASCAP's fear of thirty second promotions and essentially free advertising does not stop with the cell phone companies, as they extended their attacks to digital music stores like iTunes and Amazon. ASCAP feels that the thirty second previews offered on Amazon, iTunes, and similar online music stores, qualifies as a public performance and so, demands that these services pay an additional fee to cover this usage. Once again, it is important to note that these services already pay for distribution of the music, ASCAP just wants further money for the "public performance" aspect of the service.

The question resurfaces, why? ASCAP in effect is asking Amazon and iTunes to pay for the right to advertise ASCAP's artists as these thirty second previews are offered as a way to get people to purchase more of an artist's music, not less of it. If iTunes and Amazon were forced into such an agreement with ASCAP, it is likely that they would just remove this feature from artists under ASCAP's wing, opening more opportunities for artists not under the ASCAP banner. The only people who would be hurt by this deal would be the artists themselves, who would lose sales to fans who want to preview a song before blindly purchasing on these digital music services.

In their continued crusade to silence the music, ASCAP shifted their focus to YouTube and similar media outlets. With strong justifications (Yahoo, YouTube and others are profiting from these videos after all), ASCAP sued the various digital video distributors and won settlements and monthly contracts for the performance of videos on these networks.

However, in a similar vein to their attacks on digital music distributors and cell phone companies, ASCAP decided to push its demands too far and again, is forming a noose around the artists they claim to protect. ASCAP has decided not only to sue the digital video distributors, but to also send letters of demand to sites embedding videos from these services. Now, any web site that embeds videos from YouTube that feature ASCAP artists will be served a letter demanding the site pays ASCAP for their usage.

This seems fair, until you recall that ASCAP is already being paid for each of these views by the digital video services. In effect, ASCAP is double dipping, attempting to be paid for every view by both the digital video service and by the web sites that are sharing these videos.

Why is this cause for concern? Again, ASCAP is trying to sever promotion of its artists, and even reduce the amount of views its videos will receive, thereby reducing the overall amount of money they could be paid by these digital video services. As a web distributor, when faced with the possible burden of paying licensing fees for using YouTube, would you continue to promote and embed those videos, or would you find artists outside of ASCAP's domain and promote them instead?

As a whole, the music industry is threatened by ASCAP's continued push to make money from every use of music available. The organization has strong well-meaning goals in their desire to protect musicians copyright. However, these ambitions are being clouded by their inability to view uses of music with reason and to use discretion when dealing with distributors of musical forms.