Downloading a song is not a performance under the Copyright Act

“Performance” under Copyright Act requires “contemporaneous perceptibility”.

U.S. v. ASCAP, — F.3d —, No. 09-539 (2d Cir. September 28, 2010).

Yahoo and RealNetworks commenced a proceeding to determine the rate of a “blanket license” they would pay to ASCAP to perform musical works over the internet (e.g., through streaming services). (As an aside, such actions are brought in the U.S. District Court for the Southern District of New York pursuant to an antitrust consent order entered way back in the 1940’s.)

ASCAP wanted as big a piece of the pie as possible and argued that it should be paid royalties for songs that are downloaded. Remember, ASCAP only collects fees for the public performance (not the distribution or copying) of musical works. So it asked the court to find that each time a user downloads a file, that should be treated as a performance, and thus ASCAP should be entitled to payment.

The district court disagreed that a download is a performance as defined by the Copyright Act. ASCAP sought review with the Second Circuit. On appeal the court affirmed, agreeing that a download is not a performance.

The analysis is straightforward: The Copyright Act grants copyright owners the right, among other things, to perform the copyrighted work publicly. Under the Copyright Act, to “‘perform’ a work means to recite, render, play, dance, or act it, either directly or by means of any device or process.” Since a download plainly is neither a “dance” nor an “act,” the court had to determine whether a download of a musical work fell within the meaning of the terms “recite,” “render,” or “play.”

The court looked to dictionary definitions of the terms “recite,” “render” and “play” to observe that all three actions entail contemporaneous perceptibility. It found that music is neither recited, rendered, nor played when a recording (electronic or otherwise) is simply delivered to a potential listener.

In more detail, the court said that:

[music downloads] are simply transfers of electronic files containing digital copies from an on-line server to a local hard drive. The downloaded songs are not performed in any perceptible manner during the transfers; the user must take some further action to play the songs after they are downloaded. Because the electronic download itself involves no recitation, rendering, or playing of the musical work encoded in the digital transmission, we hold that such a download is not a performance of that work, as defined by [the Copyright Act].

So ASCAP’s piece of the pie was not as big as it wanted.