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Supreme Court decides not to hear ASCAP appeal for download royalties

Written by Rich Fiscus (Google+) @ 05 Oct 2011 13:52 User comments (2)

Supreme Court decides not to hear ASCAP appeal for download royalties An effort by US royalty collection society ASCAP to have music downloads classified as performances has ended with the Supreme Court declining to hear their appeal of a lower court ruling.
The judge in the original case concluded a download doesn't meet the legal definition of a performance under US law. A separate ruling in the same case which affected streaming royalties wasn't being challenged by ASCAP.

ASCAP's appeal to the Supreme Court was opposed by the Justice Department who were represented by US Solicitor General Don Verilli. Before working for the Obama administration, Verilli was a prominent Washington DC entertainment industry lawyer.

In the original ruling, the judge ruled:

The fact that the statute defines performance in the audio-visual context as "show[ing]" the work or making it "audible" reinforces the conclusion that "to perform" a musical work entails contemporaneous perceptibility. ASCAP has provided no reason, and we can surmise none, why the statute would require a contemporaneously perceptible event in the context of an audio-visual work, but not in the context of a musical work.

The downloads at issue in this appeal are not musical performances that are contemporaneously perceived by the listener. They 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.


ASCAP is well known for coming up with bizarre demands for performance royalties. In 2009 they lost a similar case against Verizon Wireless in which they claimed ringtone downloads should be subject to performance royalties.

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2 user comments

15.10.2011 14:51

I even disowned my dad for about 6 years when he was working for these Nazis about 10 years ago. Even he looks back at those years & wonders how he survived without contracting stomach cancer from all the drinking... confronting storefront managers, street vendors playing radios, taxis playing the radios while on duty, construction sites that had a boom box playing. ASCAP & BMI both are completely AWOL of the brain & should be put down like a rabid animal. Not to mention that a fraction of a decimal point of the funds they extort from these people ever actually get to the artists that they so adamantly say they defend & support.


26.10.2011 3:19

The wheels turn slowly but the judges and law system are starting to catch on very quick to the silly tricks these companies and people are trying to pull/use.

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