Federal Court Rules: Downloads Are Not Public Performances

Federal Court Rules: Downloads Are Not Public Performances


The United States Court of Appeals for the Second Circuit ruled on Tuesday that downloading a musical work from websites provided by Internet companies such as Yahoo! And RealNetworks does not qualify as public performances.

The American Society of Composers, Authors and Publishers (ASCAP) argued that Internet companies such as Yahoo! and RealNetworks should compensate ASCAP for musical work downloaded by consumers from an Internet company’s website. Typically, where a copyrighted work is performed by someone who does not own the copyright, a fee must be paid to the copyright holder.

ASCAP acts as a clearing house for copyright owners, collecting license fees on their behalf. Copyright owners have the right to reproduce work, distribute the work, and perform the work in public.

The court determined that while downloads created copies of the work, for which the copyright holder should be compensated, the actual download itself is not a public performance for which ASCAP should be separately compensated.

According to the court, to perform a work means to show or make the work audible. Downloads don’t “perform.” Downloads are simply transfers of the work from the Internet companies site to a consumer’s computer.

The court did provide a brief distinction between downloading and streaming transmission where there is a performance involved. For example, if Yahoo! provided a live broadcast of a Mary J. Blige concert, Yahoo! would be required to pay the copyright owner a public performance fee.

The case may bring some certainty and clarity for Internet companies that make music and video available on their sites for download. It also provides an interpretation of copyright law that other circuits may choose to follow.

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Alton Drew provides advocacy and consulting services in the areas of economic and personal liberty, broadband, and energy. Follow him on Twitter @altondrew; Facebook at http://www.facebook.com/alton.drew.5; or visit him at www.altondrew.com. The ideas and opinions expressed in this article are solely those of the author, and have complete editorial independence from any Politic365 partners, sponsors, or advertisers. For additional information about Politic365, please visit http://politic365.com/about/.