Earlier this week, the Supreme Court declined to hear an appeal from American Society of Composers, Authors, and Publishers (ASCAP) relating to whether digital downloads should be treated as public performances or not. This means the ruling of the United States Court of Appeals for the 2nd District, which affirmed the District Court’s opinion, stands, and this serves as a victory for online music sites, but a blow to ASCAP which collects royalties for songwriters.
The purpose of ASCAP’s lawsuit was to procure another stream of revenue in which to pay songwriters royalties. If a digital download is considered a public performance, then ASCAP may collect fees from online music companies distributing the downloads. Obviously, online music groups, such as webcasts and online streaming ventures, were opposed as this would decrease their revenue streams.
So, it all came down to what the words “public performance” meant. The United States Copyright Act of 1976 Section 101 defines “perform” as, “recite, render, play, dance, or act it, either directly or by means of any device or process.” ASCAP argued that the songs were publicly performed as they were played on a device. Both of the lower courts disagreed with this characterization, and the Supreme Court declined to give their final opinion on the matter. Thus, digital downloads maintain their current status as mechanical reproductions only.
ASCAP President and Chairman Paul Williams released a statement saying he was “disappointed” on behalf of their 420,000 members in the Supreme Court’s non-decision.
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