Is a music download a public performance?

That defies logic. But songwriters through the three major music performing rights clearinghouses - ASCAP, BMI and SESAC - would have it so. ASCAP filed suit in New York to be paid for downloads.

Music stores like AOL, Real Networks and Yahoo say that ASCAP has no right to such fees. They already pay royalties to songwriters for both streaming and downloaded music. The downloading royalty is called a digital phonorecord delivery or "DPD." That rate is set by law at 9.1 cents. They argue that an added fee for the process of transmitting the song is an unfair second payment.

Attorney Steve Gordon analyzes this issue in The Register.