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Downloads Not Public Performances

A PERFORMANCE OR NOT A PERFORMANCE? The Supreme Court let stand on Monday a ruling that Internet downloads of sound recordings do not constitute a public performance of the recorded musical work under federal copyright law. The justices refused to review a ruling by a N.Y. appeals court to that effect. ASCAP had appealed the ruling, saying it has profound implications for its members, costing them tens of millions of dollars in potential royalties each year. The performing rights org had argued that digital downloads were also public performances for which copyright owners must be compensated. But a federal judge and the appeals court rejected that argument. At issue was a section of the Copyright Act stating that to perform a work means to recite, render, play, dance or act it either directly or by means of any device or process. "Music is neither recited, rendered nor played when a recording (electronic or otherwise) is simply delivered to a potential listener," the appeals court ruled. The appeals court also decided that fees paid by Yahoo and RealNetworks for licenses to play music on the Internet should be recalculated. That part of the ruling was not at issue before the Supreme Court. (10/4p)

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