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October 8, 2011 / screwvala

Supreme Court Caps ASCAP Suit

On October 3, the United States Supreme Court declined to hear an appeal by ASCAP in which ASCAP sought to define the term “public performance” in Section 101 of the Copyright Act to include digital downloads of music from sites such as Yahoo! and RealNetworks.  The decision not to hear the case by the Supreme Court left intact a Second Circuit ruling holding that digital downloads are not “public performances.”

ASCAP is a non-profit membership organization that represents composers, songwriters, and lyricists in licensing non-dramatic public performances of their work.  Listen to Froggy 101?  That’s a non-dramatic performance.  Put “Ring of Fire” in a seemingly endless loop on the bar jukebox?  Also, a non-dramatic performance.  Got nosebleed seats to see The Boss?  You get the picture.

In United States v. ASCAP, et al., ASCAP tried to expand the definition of public performance to include downloads of musical works.  Defining public performances to include downloads would create a new revenue stream for ASCAP’s members worth tens of millions of dollars.  Let’s look first at the definition of public performance under §101.

The Copyright Act defines a public performance in two parts:

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or
(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

How do downloads fit in to this definition?  According to ASCAP, downloads “transmit or otherwise communicate a performance or display of the work.”  Seems logical.   However, let’s split the hair a little finer.  The definition calls for the transmission of a performance of the work.  Is the file downloaded by the user really a performance?  The Second Circuit said no.

To arrive at this holding, the Second Circuit drew an important contrast between song downloads and streaming.  In the latter, the music was heard by the user at the same time it was transmitted over the internet, much like a radio or television broadcast.  Hence, streaming clearly results in a public performance of the work.  By contrast, a download transfers a file to a computer and then the user listens to the file at his or her convenience.  Since the download does not immediately result in a broadcast of the work, there has been no public performance.

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