ASCAP Loses Major Music Download Appeal Case; Blanket License Fee Calculation Remanded to District Court
Is a song download a public performance?
In a strongly worded opinion coming out of the US Second District Court of Appeals last week, the court ruled against ASCAP and remanded the case, which involved Real Networks and Yahoo.
The court (decision available here in full text via Film Music Magazine) analyzed existing copyright law and precedent extensively. The meaning of the word “perform”, defined in Section 101 of the US Copyright Act as “to recite, render, play, dance or act it, either directly or by means of any device or process,” had a significant impact on the decision.
As Film Music Magazine noted, the decision “in large part hinged on the fact that a download does not include a ‘contemporaneously perceptible event’ – that during a download, the musical work could not be heard or listened to.”
We’re looking forward to seeing how this decision will impact our new media and technology clients, for whom the difference between a download and public performance can sometimes mean thousands in royalties.