May 19 (Westlaw Journals) - The American Society of Composers, Authors and Publishers is asking the U.S. Supreme Court to review a federal appeals court’s ruling that a download of music from the Internet does not constitute a public performance entitling copyright holders to higher compensation.
The 2nd U.S. Circuit Court of Appeals’ decision is flatly at odds with the Copyright Act and the legislative objectives it was designed to promote, ASCAP argues in its petition for a writ of certiorari.
If left to stand, the ruling could have a profound effect on the music industry, costing ASCAP members tens of millions of dollars in potential royalties every year, the organization says.
The 2nd Circuit affirmed a 2007 ruling regarding downloads by the U.S. District Court for the Southern District of New York. United States v. ASCAP, 2010 WL 3749292 (2d Cir. Sept. 28, 2010).
The District Court held that a download of a digital file containing a musical work does not constitute a public performance of that work. United States v. ASCAP, 485 F. Supp. 2d 438 (S.D.N.Y. 2007).
Under a 1941 settlement of an antitrust case against ASCAP, the U.S. District Court for the Southern District of New York is exclusively responsible for determining reasonable fees for ASCAP licenses.
The distinction between public performances and downloads affects the amount of compensation to which copyright owners are entitled.
In this case, the parties agreed that downloads are copies of musical works for which copyright owners must be compensated.
ASCAP maintains, however, that downloads are also public performances for which the copyright owners are entitled to separate and additional compensation.
The District Court disagreed, ruling that the transmission of a copyrighted musical work to the public by means of a digital download was not a public performance.
In its decision affirming the lower court, the 2nd Circuit explained that the Copyright Act confers a bundle of discrete exclusive rights on copyright owners. Those rights include the right to reproduce the copyrighted work and the separate right to perform the work publicly.
The appeals court looked to Section 101 of the Copyright Act, which says that “to ‘perform’ a work means to recite, render, play, dance or act it, either directly or by means of any device or process.”
American Society of Composers, Authors and Publishers v. United States et al., No. 10-1337, petition for cert. filed (U.S. May 2, 2011).
(Reporting by Deborah Nathan, Westlaw Journal Intellectual Property)