Holding

In partially granting the motion for summary judgment of applicants AOL LLC, Yahoo! Inc., and RealNetworks, Inc., the district court held that the downloading of a music file is more accurately characterized as a method of reproducing that file, and should not be considered a public performance of the song embodied in that file, within the meaning of the US Copyright Law.

Detailed Summary

ASCAP is an unincorporated membership association that aggregates the licensing authority of thousands of composers, authors, lyricists and music publishers, and issues licenses affording users access to its amassed collection of several million musical works. Each member has granted ASCAP a non-exclusive right to license the public performance rights to his or her compositions. ASCAP serves as licensing agent and collects royalties.

Applicants are large, global internet service companies engaged in the provision of numerous media services, including the online distribution of music, to their subscribers.  As part of their service packages, applicants engage in the distribution of music over the internet through two mechanisms: streaming and downloading. 

ASCAP filed this civil action in order to seek a judicial determination of the reasonable fee to be charged for use of its media on the online services provided by the applicants.  The online service providers filed motion for summary judgment.  At issue in this case is whether under the Copyright Law, the downloading of a digital music file constitutes “public performance.”

According to the court, downloading of a digital music file, which it defined as the “transmission of a digital file over the Internet from a server computer, which hosts the file, to a client computer, which receives a copy of the file during the download,” merely constitutes transmission of the signal which was not capable of simultaneous perception, but it was designed to deliver a digital file that the recipient later could play at his pleasure. ASCAP argued that downloaded music files are indistinguishable from streamed performances, which constituted “public performances.”

However, the court disagreed, saying that the mere fact that a customer’s online purchase is conveyed to him in a piecemeal manner, each segment of which is capable of playback as soon as the transmission is completed, does not change the fact that the transaction is a data transmission rather than a musical broadcast.  It is not the availability of prompt replay, the court added, but the simultaneously perceptible nature of a transmission that renders it a performance under the statute.