The Supreme Court recently has denied certiorari in American Society of Composers, Authors and Publishers (ASCAP) v. United States, reinforcing the notion that public performance royalties will not be paid to artists when their music is digitally downloaded from internet companies such as Yahoo!, which did not want to pay the 2.5% royalty rate that ASCAP sought to impose on each song that was downloaded. The justices let stand the New York appeals court ruling that a digital download of a musical work does not fall under the Copyright Act’s definition of a public performance, and, therefore, copyright owners have no right to be compensated.

The high court justices effectively agreed with the appeals court when it stated that: “Music is neither recited, rendered, nor played when a recording (electronic or otherwise) is simply delivered to a potential listener.”000

Theodore Olson, the attorney for ASCAP, contended the appellate ruling improperly narrowed public performances of copyrighted works and places the United States in violation of not only intellectual property treaties but international agreements, as well.

The United States, opposing the appeal to the Supreme Court, argued that the appellate court correctly laid out the difference between music that is downloaded and music that is streamed:

For the downloads at issue here, the contents of the file are not played during the download.  Rather, after the download is complete, the customer may use soft­ware on his computer to play the recording.  Then, and only then, can the customer perceive the music.

Thus, the appellate court had concluded that a public performance and consequential royalty could come about only if there were a ‘contemporaneously perceptible performance‘, which does not occur when a song is downloaded first, then played.