The Supreme Court refuses to decide whether downloading a song is a public performance requiring artists to collect additional royalties.
The American Society of Composers, Authors and Publishers, known as ASCAP, has asked judges to review a lower court ruling that the downloading of songs from iTunes, Amazon, eMusic or even music sharing services do not count as public performances and therefore additional royalties. are unjustified. On Monday, the court let that decision stand without comment.
The group, which has 400,000 members, argued in its petition to the judges that the Copyright Act requires additional royalties, which could amount to tens of millions of dollars in additional revenue per year. The appeals court said that downloading a music file is more properly termed a “reproduction” of that file and not subject to performing rights.
The 2nd United States Circuit Court of Appeals, ruling against ASCAP, said that “to play”, as stated in Section 101 of the Copyright Act, means “to recite, render, perform , dance or perform directly or by means of any device or process.”
ASCAP licenses the right to publicly perform its members’ musical works to a wide range of music users, including Internet and network sites and services, television and radio stations, restaurants, hotels and sports arenas.
The artists, represented by Theodore Olson, a former US solicitor general, told the judges in their motion that the case was “vital importance.” (.pdf)
“If the Second Circuit’s decision stands, songwriters and music publishers across the country will be denied their legal right to receive royalties for public performances when their works are uploaded to the Internet – which is already the one of the most popular means of distributing copyrighted musical works,” Olson wrote.
The government, backed by Solicitor General Donald Verrilli Jr., a former lawyer for the Recording Industry Association of America, urged judges to dismiss ASCAP’s petition.
“Because the download itself does not involve any dancing, acting, reciting, rendering, or playing of the musical work encoded in the digital transmission, it is not a performance of that work,” wrote the government to judges.
See SCOTUSblog for case documents.
Photo: Phil Dokas/Flickr