In what promises to be one of the most hotly contested copyright issues this year, the question of whether downloading a song means that there is a "public performance" of a composition is now officially for a federal court judge in New York to decide.

Legal briefs were filed Wednesday (Feb. 28) in a rate proceeding between ASCAP, on the one side, and AOL, RealNetworks and Yahoo, on the other side.

The significance of this question is evident by who filed amicus ("friends of the court") briefs Wednesday to make sure their positions are noted: the RIAA, BMI, the National Music Publishers' Assn., the Digital Media Assn., the Cellular Telecommunication and Internet Assn. and others.

Until now, most digital services like Apple, AOL and others have only paid royalties for "reproducing" the recorded compositions that were downloaded.

The royalty paid for reproducing a composition that's been recorded is called a mechanical royalty for physical goods (like CDs and cassette tapes) or a digital phonorecord delivery (DPD) royalty for recorded compositions that are delivered digitally (like a download).

Most, if not all, of the digital services have paid public performance royalties to ASCAP, BMI or SESAC only for streaming.

This division of DPD royalties for downloads (paid to the Harry Fox Agency or to publishers directly) and performance royalties for streams (paid to ASCAP, BMI or SESAC) resulted from a so-called gentleman's agreement, many publishers say. This non-binding agreement was made some years ago since copyright law was unclear on the subject and digital services were at a nascent stage, they explain.

Now, ASCAP and others want clarification of copyright law, especially since television broadcasts, which often include music, are increasingly being offered as downloads. The performing rights organization claims that there should be a performance royalty; what the royalty rates should be is a separate issue.

"As music use over the Internet becomes more prevalent, the stakes become increasingly significant," ASCAP wrote in its brief. "We ask this court to vindicate the rights of creators and copyright owners confirming that, when [the digital companies] transmit downloads of copyrighted musical works, they are performing those works publicly."

DiMA, whose brief was supported by NARM, the Entertainment Merchants Assn. and the Consumers' Electronics Assn., is fighting ASCAP's position.

"ASCAP's assertion in federal court that digital distributions of music and video are also public performances confounds legal, business and technological reality," Jonathan Potter, DiMA's executive director, said in a statement. "For a decade ASCAP and BMI have successfully preyed on less-confident or underfinanced companies that were willing to pay double-dip royalties. Now, however, we are confident that a judge will finally end this travesty."