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If a music file is downloaded to a computer, and no one is there to play it, does it constitute a performance? This is not some question from a digital-age freshman philosophy seminar — it was the legal issue recently facing Judge William C. Connor in the U.S. District Court of the Southern District of New York in United States v. American Society of Composers, Authors and Publishers, Civ. No. 41-1395 (WCC) (April 25).[FOOTNOTE 1]

Faced with this issue, Connor found that a digital download alone, as distinct from a digital media “stream,” does not constitute a performance. While this decision seems obvious and has been widely viewed — by everyone other than the American Society of Composers, Authors and Publishers — as correct, it is not actually as simple as it at first seems.

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