2d Cir. Rules That Downloading Digital File Containing A Musical Work Not “Public Performance”

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Yahoo! Inc. and RealNetworks, Inc. (collectively, the “Internet Companies”) sought separate blanket licenses to publicly perform the entirety of the American Society of Composers, Authors and Publishers (“ASCAP”) repertory for certain of their websites and services. A blanket license is a license  that gives the licensee the right to perform all of the works in 5 the repertory for a single stated fee that does not vary depending on how much music from the repertory the licensee  actually uses.

In this case, the Internet Companies offer their customers the ability to download musical works over the Internet. It is undisputed that  these downloads create copies of the musical works, for which the parties agree the copyright owners must be compensated. However,  the parties dispute whether these downloads are also public performances of the musical works. ASCAP contended that the downloads are public performances for which the copyright owners must separately and additionally be compensated. The district court held that these downloads are not public performances, the Second Circuit Court of Appeals agreed.

The Court held that the downloads were not musical performances that were simultaneously perceived by the listener. Rather, they were only transfers of electronic files containing digital copies from an online server to a local hard drive. Because the downloads at issue involved no recitation, rendering, or playing of the musical work encoded in the digital transmission, such a download was not a performance of that work.

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