US Appeals Court: Digital Downloads “Not Public Performance”

US Appeals Court: Digital Downloads “Not Public Performance”

American Society of Composers, Authors and Publishers (ASCAP) had tried to argue that a digital downloads “transmit or otherwise communicate a performance,” but the court disagreed, ruling that clearly a download is not a “dance” or “act,” nor is it “recited,” “played,” or “rendered” as stipulated in the Section 101 of the Copyright Act.

The American Society of Composers, Authors and Publishers (ASCAP) has a long history of trying to extract more revenue from the oddest of places, and luckily for all it’s had little success. The performance rights organization collects royalties for public performances of the works of members it represents, and has been repeatedly trying to expand the definition of what a “public performance” is.

Last June it tried to argue that “when a cellphone ringtone rings in ‘public’ it is undeniably a ‘public performance’ as those terms are defined in the Copyright Act,” even telling the court that “whether the ringtone is set to play, and indeed whether anyone hears it, is of no moment.”

So even if the phone can’t be heard it’s still a “public performance” in their mind.

NY District Judge Judge Denise Cote eventually disagreed and ruled that a ringtone is exempt being that it normally only occur within ones “normal circle of a family and its social acquaintances” and there is no obvious expectation of profit to be made.

Earlier this year it even declared war on free culture, attacking Creative Commons licensing which gives artists “free licenses and other legal tools to mark creative work with the freedom the creator wants it to carry, so others can share, remix, use commercially, or any combination thereof.”

Apparently free distribution, even if freely chosen by an artist, is anathema to an organization supposedly comprised of creative talent.

Fast forward to last week and ASCAP’s battle with Yahoo and RealNetworks over digital downloads. ASCAP had tried to argue that digital downloads – get this – “transmit or otherwise communicate a [public] performance.”

Thankfully the U.S. Court of Appeals for the Second Circuit disagreed.

The court determined that a download did not qualify as a “dance” or “act” nor in way relate to any of the other words Section 101 of the Copyright Act defines a “public performance” – “recite,” “play” and “render.”

From section 101 of 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 or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.

The court found that if you can’t hear then it is clearly not a “public performance,” and digital downloads are not “contemporaneously perceived” by a listener.

From the ruling:

These definitions comport with our common-sense understandings of these words. Itzakh Perlman gives a “recital” of Beethoven’s Violin Concerto in D Major when he performs it aloud before an audience. Jimmy [sic] Hendrix memorably (or not, depending on one’s sensibility) offered a “rendition” of the Star-Spangled Banner at Woodstock when he performed it aloud in 1969. Yo-Yo Ma “plays” the Cello Suite No. 1 when he draws the bow across his cello strings to audibly reproduce the notes that Bach inscribed. Music is neither recited, rendered, nor played when a recording (electronic or otherwise) is simply delivered to a potential listener.

Moreover, a download is transmission of data from one server to another and isn’t heard at any time in between.

ASCAP is, of course, “disappointed” with the ruling.

“ASCAP and its songwriter, composer and music publisher members are, of course, disappointed in the Court’s decision that there is no public performance in the transmission of certain musical downloads,” it said afterwards. “We are studying the decision and will determine what further action is appropriate.”

Let’s hope they use somebody else’s definition of what is “appropriate.”