Supreme Court Ruling Goes Against ASCAP

Paul Williams

THE SUPREME COURT has handed a victory to online music companies when the nation's highest court "declined to hear an appeal in a case that could have resulted in increased royalties for digital music. The decision let stand a lower court’s ruling that downloading a song does not constitute a 'public performance' of it, clarifying a technical but important distinction about the way songwriters and music publishers are paid," reports THE NEW YORK TIMES.

The court's ruling stemmed from a case originally filed by ASCAP in 2007. Publishers are currently paid royalties in one of two ways. Most forms of webcasting and online streaming are treated a form of public performance, therefore a "performance right" fee is assessed.

A download is treated differently. It's assessed as a "mechanical reproduction" of a song in a fixed format. That term comes from the days of sheet music, and continues to this day when applied to records and permanent downloads.

"ASCAP, one of the three major organizations in the U.S. that collect royalties on behalf of publishers, argued that the digital transmission of a download was a public performance, in addition to its being a permanent reproduction," noted THE TIMES. "A federal district court ruled against ASCAP. Last year the U.S. COURT OF APPEALS FOR THE SECOND DISTRICT agreed with the lower court's decision, saying that downloads do not satisfy the conditions for public performance as laid out in THE COPYRIGHT ACT, which states that to perform a work means 'to recite, render, play, dance, or act it.'"

ASCAP Pres./Chairman PAUL WILLIAMS released this statement: "ASCAP, on behalf of our 420,000 songwriter, composer and music publisher members,is disappointed that the U.S. SUPREME COURT has chosen not to consider whether a copyrighted musical work is being publicly performed when it is transmitted to a member of the public through an Internet download."

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