Recently, the United States Court of Appeals for the Second Circuit held that the downloading of a digital music file over the Internet does not constitute a “public performance” of the work under the Copyright Act. ASCAP v. U.S., 2011 WL 4536526, 1 (2011).

In that case, the plaintiff was the American Society of Composers, Authors and Publishers (ASCAP), an unincorporated membership association that licenses approximately 45% of all the musical works played online. Each member of the organization granted ASCAP a non-exclusive right to license the public performance rights to his or her compositions. When AOL LLC, Yahoo! and Real Networks (collectively, the “Applicants”) applied to ASCAP for a license to publicly perform the musical works from ASCAP’s repository via their Internet services, the parties were not able to agree on a licensing fee. Therefore, ASCAP applied to the United States District Court for the Southern District of New York for the determination of a reasonable fee. At the same time, ASCAP also alleged that downloading of music files over the Internet constituted a “public performance” under the Copyright Act for which the copyright owners must be separately and additionally compensated. ASCAP and the Applicants each moved for partial summary judgment on this issue. The United States District Court for the Southern District of New York granted partial summary judgment to the Applicants. ASCAP appealed to United States Court of Appeals for the Second Circuit.

The United States Court of Appeals for the Second Circuit affirmed the District Court’s grant of partial summary judgment on the grounds that downloads of music files over the Internet do not constitute public performances of the downloaded musical works. In making this determination, the Court first examined the meaning of the word “perform” as defined in Section 101 of the Copyright Act.  That Section defines performing a work as meaning to recite, render, play, dance, or act it, either directly or indirectly or by means of any device or process.” 17 U.S.C. § 101.  Since a download is neither a “dance” nor an “act”, the Court then determined whether a download of musical work fell within the meaning of the terms “recite”, “render” or “play”.

The Court looked at the plain meaning of the words “recite”, “render”, and “play” and concluded that all three words refer to actions that can be perceived contemporaneously. The Court held that the final clause of Section 101 of the Copyright Act also reinforced its conclusion of contemporaneous perceptibility by stating that “[t]o perform … a motion picture or other audiovisual work … [is] to show its images in any sequence or to make sounds accompanying it audible.” 17 U.S.C.  § 101.

The Court held that a download of music file is nothing but a transfer of music file “from an on-line server to a local hard drive”. US v. ASCAP, 627 F. 3d 64, 69 (C.A.2, 2010). Once the music is downloaded, the listener needs to take further action to play the song, and therefore, download of musical files in not contemporaneously perceived by the listener.  The Court then examined the definition of the word “publicly” as defined in Section 101 of the Copyright Act. Under that Section 101, to perform or display a work “publicly” means:

(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.

                 17 U.S.C. § 101.

The Court held that the “definition of “publicly” simply defines the circumstances under which a performance will be considered public; it does not define the meaning of “performance.” ” Id. at 73. The Court also pointed out the difference between music streaming and music downloading. The Court noted that music streaming renders the music audible to the listener as it is received by the listener’s computer memory whereas music downloading does not immediately produce sound. Thus, downloading of music is merely transmitting music and not performing it. Thus, the Court affirmed the District Court’s decision. The United States Supreme Court declined to hear the case.

In sum, the general rule is that downloading music files over the Internet does not constitute a “public performance” under the U.S. Copyright Act.


© 2012 Nissenbaum Law Group, LLC

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