This issue was faced head on by Judge Conner of the SDNY, who has long ridden herd over the ASCAP consent decree, as the ASCAP rate court. On April 25th, he issued an opinion on the question of whether the downloading of a digital musical file constituted a public performance of the song. He held it did not. Of particular interest to the Cablevision case (and buffering) is the following language:
[W]e are not persuaded by ASCPA's argument that downloaded music files are indistinguishable from streamed performances because, after a certain amount of digital data has been transmitted to the client computer, the purchaser can begin listening to the transmitted portion of the music file. However, the mere fact that a customer's online purchase is conveyed to him in a piecemeal manner, each segment of which is capable of playback as soon as the transmission is completed, does not change the fact that the transaction is a data transmission rather than a musical performance broadcast.
Opinion at 10-11 (emphasis in original).
(HT to Josh Wattles.)