Case and Court
United States v. ASCAP, No. 09-0539 (2d Cir. Sep. 28, 2010).
The Second Circuit Court of Appeals today affirmed the district court’s decision that a download of a digital file containing a musical work is not a “public performance” of that musical work. This is a win for Yahoo! Inc. and RealNetworks, Inc. who persuaded the court that since file downloads were not contemporaneously audibly perceptible, they were not public performances as defined in the Copyright Act.
The Court adopts and defends its interpretation of public performance from Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008), which required a performance to be created by the act of transmission, not simply a transmitting of a recording of a performance.
- Mike Masnick, Appeals Court Tells ASCAP: A Download Is Not A Performance, TechDirt (Sep. 28, 2010).
- Mark Hefflinger, Appeals Court: Music Downloads Not ‘Public Performances’, Digital Media Wire (Sep. 28, 2010).