The U.S. Supreme Court declined Monday to hear the appeal of a case in which the download of a musical work does not constitute a public performance. As a result, the membership of the American Society of Composers, Authors and Publishers (ASCAP) will not be able to tap into the significant revenue stream from digital downloads.
ASCAP had appealed to the Supreme Court after losing the case in September 2010. "The district court held that these downloads are not public performances," the appeals court wrote in its ruling, "and we agree."
At the heart of the matter is the interpretation of Section 101 of the Copyright Act, which states that to "perform a work means to recite, render, play, dance, or act it, either directly or by means of any device or process." The appeals court gave a number of examples of how music is recited, played or rendered, such as Yo Yo Ma playing on his cello. "Music is neither recited, rendered, nor played when a recording (electronic or otherwise) is simply delivered to a potential listener," the ruling stated.
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As a performing rights organization, ASCAP collects royalties for the public performance of its songwriter members' compositions. The sale of a music download - either a full track or a ringtone - results in a mechanical royalty paid to the songwriter. Those songwriters are paid separately for mechanical royalties for the sale of recorded music.
ASCAP filed the suit to ensure two wireless carriers, with whom ASCAP was in rate court at the time, pay ASCAP members a share of the substantial revenue they derive from content that uses ASCAP members' music in many different forms. Specifically to ringtones, ASCAP was seeking to license wireless carriers' transmission of its members' music.