Music Publishers Are Not Entitled To Separate Royalties
Downloading of digital music, as opposed to streaming the music for your listening pleasure, is not a public performance entitling the publisher to a second royalty, according to the Second Circuit Court of Appeals.
In a lawsuit brought by the American Society of Composers, Authors and Publishers ("ASCAP") against Yahoo! and Real Networks, the appeals court held that the downloading of a song to be played from the copy made on the user's computer when they choose (for which a separate royalty is payable) is not what Congress said when the Copyright Act was adopted. United States v. ASCAP, Nos.: 09-0539-cv, 09-0542-cv, 09-0666-cv, 09-0692-cv and 09-1572-cv (2d Cir. September 28, 2010).
The case seems to state the obvious, but the significance lies in the fact that in two other cases, courts have held in other cases that the transmission of copyrighted material was infringement in that it was part of a contemporaneous public performance. NFL v. Primetime 24 Joint Venture, 211 F. 3d 10 (2d Cir. 2000)(uplink transmitting protected content to subscribers was part of a public performance) and David v. Showtime/The Movie Channel, 697 F. Supp. 752 (S.D.N.Y. 1988)(initial transmission of cable signal was a public performance because it was the way in which a protected work reached its audience).
Among the other rights granted by the Copyright Act, authors have the exclusive right to perform works publicly. ASCAP licenses and collects royalties on musical works and argued that because Yahoo! and RealNetworks offer both streaming and downloaded music to subscribers, they should pay performance royalties for the downloads.
The statute however, defines to perform as to recite, render, play, dance or act the work, either directly or by mans of any device. The appellate court held that the language was clear and unambiguous and, under the circumstances, the downloading of a digital file to be played later was fundamentally different that streaming music that is listened to as it is transmitted.
The difference between the earlier decisions finding a public performance in a transmission lay in the closeness of the transmission and the playing. The court distinguished on the basis that transmission for immediate performance is, in effect, a performance. Still, the fact that in one case the performance was recorded and paid for and in another it was played immediately does not provide a clear distinction. More telling is the fact that in the current case, the authors are being compensated, while in the other case the works were being pirated.
Contact McDaniel & Park, P.C. to discuss your specific needs with a lawyer in the New York City or Hackensack area.
