Downloads of recordings not public performances

With potentially millions in royalties for songwriters and publishers at stake, the Supreme Court is letting stand a lower court ruling that Internet downloads of music recordings are not public performances.

ASCAP had challenged an appellate ruling that digital downloads do not fall within the definition of a public performance, a key distinction in calculating royalties for its members. At issue was whether songwriters and publishers should be compensated beyond royalties for reproduction of musical works when music is licensed to Internet companies. ASCAP licenses about 45% of all music works played online.

The high court provided no comment in refusing to take the case.

Last year, the 2nd Circuit Court of Appeals ruled that the downloading was not a public performance because “music is neither recited, rendered nor played when a recording (electronic or otherwise) is simply delivered to a potential listener.” It relied on what it called the “common sense understanding” of the definition of public performance in the Copyright Act, in which the terms “recite,” “render” and “play” are used to explain what it means.

The high court did not rule on a separate question regarding the way that royalties are calculated, which was challenged by Yahoo and RealNetworks.

The appellate court stated in its opinion last year that “the downloads at issue in this appeal are not musical performances that are contemporaneously perceived by the listener. They are simply transfers of electronic files containing digital copies from an online server to a local hard drive.”

ASCAP had argued that the downloads “transmit or otherwise communicate a performance,” falling in line with another clause in the Copyright Act.

The appellate court last year did make a distinction between downloads and Internet streaming, raising the possiblity that the latter would be considered a public performance akin to a radio or TV broadcast.

In a statement from ASCAP, Paul Williams, president and chairman of the board said, “ASCAP, on behalf of our 420,000 songwriter, composer and music publisher members, is disappointed that the United States Supreme Court has chosen not to consider whether a copyrighted musical work is being publicly performed when it is transmitted to a member of the public through an Internet download.”

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