The American Society of Composers, Authors and Publishers (ASCAP) sued Yahoo and RealNetworks in hopes of collecting performance royalties on songs streamed from their websites. (ASCAP is among several performance-rights organizations which collect royalties on behalf of artists.)
After failing in the District Court, ASCAP asked the 2nd Circuit to rule that a download constitutes a “performance” under the Copyright Act. Instead, the 2nd Circuit ruled that downloads DO NOT constitute a “performance” within the meaning of the Act:
[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].
U.S. v. ASCAP, — F.3d —, No. 09-539 (2d Cir. September 28, 2010).
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