Supreme Court Tightens the Lid on Internet Music Royalties; Refuses to Hear Copyright Case Involving Music Downloads and Public Performances

Supreme Court Tightens the Lid on Internet Music Royalties; Refuses to Hear Copyright Case Involving Music Downloads and Public Performances

Internet companies rejoice!

Composers, songwriters and lyricists commiserate!

On Monday, the Supreme Court denied the American Society of Composers, Authors and Publishers' (ASCAP) petition for certiorari and let stand the 2nd Circuit's holding that Internet music downloads do not amount to a public performances under the Copyright Act. In light of the 2nd Circuit's holding, collecting royalties from online music vendors will be restricted.

United States v. Am. Soc'y of Composers, 627 F.3d 64 (2d Cir. 2010) [enhanced version available to lexis.com subscribers / unenhanced version available from lexisONE Free Case Law] presented the question: does the download of a digital file (as opposed to a streaming performance) containing a musical work constitute a public performance of that musical work? In answering the question, the court turned to 17 U.S.C. § 101, which states that, "[t]o 'perform' a work means to recite, render, play, dance, or act it, either  directly or by means of any device or process." A download plainly was neither a "dance" nor an "act." Thus, the court had to determine whether a music download fell within the meaning of the terms "recite," "render," or "play."

In holding that a music download did not constitute a public performance of that work, the court stated:

The ordinary sense of the words "recite," "render," and "play" refer to actions that can be perceived contemporaneously. To "recite" is "to repeat from memory or read aloud esp[ecially] before an audience," to "render" is to "say over: recite, repeat," and to "play" is to "perform on a musical instrument," "sound in performance," "reproduce sound of recorded material," or "act on a stage or in some other dramatic medium,". All three actions entail contemporaneous perceptibility.

....

... The fact that the statute defines performance in the audio-visual context as "show[ing]" the work or making it "audible" reinforces the conclusion that "to perform" a musical work entails contemporaneous perceptibility. ASCAP has provided no reason, and we can surmise none, why the statute would require a contemporaneously perceptible event in the context of an audio-visual work, but not in the context of a musical work.

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... a "transmittal of a work" is distinct from a transmittal of "a performance" -- the former being a transmittal of the underlying work and the latter being a transmittal that is itself a performance of the underlying work.

(citations omitted)

Lexis.com subscribers can view the briefs filed in United States v. Am. Soc'y of Composers, 627 F.3d 64 (2d Cir. 2010)

For more information on this case, read LaFrance on Music Downloads as Reproductions Rather than Public Performances

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