|
Supreme Court Rejects ASCAP Appeal: Internet Downloads Not A |
|
|
In a decision that
simultaneously disappointed songwriters and publishers and pleased online
music providers, the Supreme Court declined to hear an appeal brought by the
American Society of Composers, Authors and Publishers (“ASCAP”) seeking
additional license fees for music downloads. The October 3, 2011 ruling let stand a
lower court decision holding that downloading digital files containing
musical works does not constitute a public performance of the works requiring
payment of additional licensing fees. This development marks the
end of a process that began in 2007, when the U.S. District Court for the
Southern District of New York, which has responsibility for determining
reasonable fees for music licenses, held that downloading files containing a
musical work did not qualify as a “performance” of the work for which
additional copyright license fees could be levied. This decision meant that the number of
musical works downloaded from Yahoo! and RealNetworks, whose ASCAP licenses
were the subject of the proceedings, would be excluded from the calculation
to determine the royalty owed under the license to stream the work online
(streaming does qualify as a “performance” of the work). It is worth noting that online music
providers already pay royalties for downloading music under separate licenses
covering the reproduction and distribution of these works. ASCAP appealed to the 2nd
Circuit Court of Appeals, arguing that downloading constituted a separate
public performance of the works requiring additional compensation. The appeal was denied in March 2010. United States v. Am. Soc'y of Composers,
627 F.3d 64 (2nd Cir.). In
reaching its decision, the court focused on the language of the Copyright
Act, which states specifically that “to perform” a work means “to recite,
render, play, dance or act it, either directly or by means of any device or
process.” Merely downloading digital
files containing music, the court concluded, involved none of these acts, and
therefore did not constitute a public performance that would require an
additional payment from websites offering music downloads. The Supreme Court’s
decision not to hear the appeal affirms the status quo, at least in the 2nd
Circuit. It is, of course, possible
that the issue could be raised again in another circuit, and if the circuits
reach different conclusions, the Supreme Court may be inclined to accept the
issue for review. In the near-term,
however, websites that allow users to download files containing music will
not have to pay additional “performance right” licensing fees. If you have any question on
this or a related copyright issue, please do not hesitate to call Louis J.
Levy (llevy@lermansenter.com) or
Philip A. Bonomo (pbonomo@lermansenter.com). October 11, 2011 |
|
|
This memorandum is intended only as a general discussion of these issues and should not be regarded as legal advice. We would be pleased to provide additional details or advice about specific situations if desired. Copyright © 2011, Lerman Senter PLLC 2000 K Street NW,
Suite 600 | Washington, DC 20006-1809 To Unsubscribe: Unsubscribe | To Update Client Info: Update Client Info |
|
