US Supreme Court Lets Stand Ruling That Says Music Downloads Are Not Public Performances
from the thank-goodness-for-little-things dept
Ah, ASCAP. The music collection group that keeps getting more and more desperate, seems to have finally and completely lost its quixotic attempt to claim that a music download represented a "public performance," which required a separate license, beyond the mechanical reproduction license. The group had been in a legal fight with Yahoo and Rhapsody over whether or not those companies had to pay extra to songwriters (whom ASCAP represents) in addition to the money they were already paying to license songs from the record labels for downloads. The district court sided with ASCAP and presented a bizarre formula involving a percentage of all revenue (such that Yahoo would have to pay some of its search revenue to ASCAP for no clear reason). Thankfully, an appeals court overturned the ruling, noting that a download is not a public performance, and that the bizarre calculation rate didn't make much sense. ASCAP (of course) appealed to the Supreme Court, which has declined to hear the case, meaning that the appeals court ruling stands. This isn't a definitive rejection of "download = public performance," as technically, it's just the law in the Second Circuit. In theory, some other Circuit could rule otherwise, and create a circuit split for the Supremes to look at. But, that's probably unlikely, and it's most likely that this ruling effectively makes it clear across the country that a download is not a public performance. As it should be, because it's not.
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Filed Under: downloads, public performance
Companies: ascap, rhapsody, yahoo
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If one of the other circuits is faced with a similar case and rules in the other direction, it might have the requirements to make it to the level of the supreme court. For now, there just isn't enough conflict to make it worthwhile.
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> only declined to hear the case because there
> isn't any different views between the circuits
> to resolve
Baloney. The Court grants cert on cases all the time where there's no conflict between the circuits.
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Declining to hear the case, means they let the lower court ruling stand. The post is correct. You seem to be arguing that "declining to hear the case" and "letting the lower ruling stand" are mutually exclusive. They are not. When the SC declines to hear a case, it means they let the lower court ruling stand.
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There is a big difference. One suggests that they said nothing (we just won't hear the case) and the other suggests they did say something (We won't hear the case because it's a fine ruling).
They didn't let the ruling stand, they didn't support it in any manner. They just declined to hear it. It implies nothing about the validity of the ruling, only that the case and ruling(s) having made it to the level that they want to get involved.
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No, actually, there's not. Look, you may like to try to attack everything I write... and we can have a difference of opinion on things, but on this one you're just factually incorrect. Saying that the SC let's the lower court ruling stand is entirely accurate and common for when the SC declines cert.
One suggests that they said nothing (we just won't hear the case) and the other suggests they did say something (We won't hear the case because it's a fine ruling).
No. This is not true. Besides I clearly explained in the article that they declined cert and what it meant. But it does mean that the lower court ruling stands. That is 100% accurate.
They didn't let the ruling stand
Yes. They did. If they did not, then the lower court ruling would not be in effect. But it is. So you're wrong.
It implies nothing about the validity of the ruling
It means that the lower court ruling stands. We can argue all day about this, and you're not going to be any less wrong the deeper you dig. Go ask a lawyer. Any lawyer.
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http://mediadecoder.blogs.nytimes.com/2011/10/04/disappointing-songwriters-supreme-court-r ejects-music-appeal/
http://www.variety.com/article/VR1118043888?refCatId=16
http://arstechnic a.com/tech-policy/news/2011/10/scotus-lets-stand-ruling-that-downloads-are-not-performances.ars
I assume you're going to say that Variety and the NY Times are just "pirate defenders" too, right?
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Yeah Mike, that's like me saying I'm standing still and you saying I'm not walking because I have no forward motion, completely different...
No, no I just can't do it. There is no way to improve on that guy's self-parody. Excellent troll AC, 10 out of 10 for style.
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With streaming no longer being a "public performance". How do you think this ruling will affect the Zediva appeal??
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I don't think that's an accurate statement, actually. In some cases, in some jurisdictions, it may be a public performance. But not always.
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I don't think that's an accurate statement, actually. In some cases, in some jurisdictions, it may be a public performance. But not always.
So why is the body of law related to streaming as a public performance less clear than the body of law related to downloading as a public performance.
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I see. We're talking about different things. You meant within the case. I meant in general. Not all streaming is a public performance. Sorry for the confusion.
Yes, within the confines of this case, the parties agree that streaming as it was used by these parties, was a public performance.
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Has nothing to do with streaming. Has no impact on Zediva.
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I have nothing to get over. What about you?
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The commenter is just mocking IP maximists when they make similar comments. That you took the comment seriously and attacked it just reinforces the comment's point.
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What do you mean?
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Surely you jest.
I did not find the word "performance" in any of the first five Google returns for the term download. Am I doing it wrong?
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Re: What do you mean?
It is a public performance if the a member of the public might download it in public.
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Until those bits are converted to sound and/or video, they're just that - a bunch of 1's and 0's.
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The magic smoke one sometimes sees leaving a computer case is actually the souls of pixies pushed to far and to hard to reproduce to many songs in a public performance.
Before you torrent that next album, won't you stop and think of the pixies?
/sallystuthers
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Based on all the whining messages you post here, we can tell it is your side. We can also tell you could have argued for something so stupid. So yes, your side lost. Get over it.
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u know..
Honestly, I didn't even check who created the song, who cares what alphabet soup thinks I owe them money, because, well, I don't owe them any.
you know they are getting desperate when they go after pre-schools for showing a Disney movie to children, that they actually paid for. That's the limit, I paid for it, I shall perform as I please, public or otherwise.
but, but, think of the children,.. gag..
You call me a freetard, well, it's because of the multitude of copyfraud going on, I sleep much better knowing that I didn't actually pay for some inane license by some inane licensing copytard extorting copyfraud from the children.
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I mention this only because the article above refers to the general licenses granted to the defendants cover the use on their websites of music in the ASCAP repertoire. This license is separate and distinct from the rights associated with digital file downloads.
In view of the above, it seems clear why cert was denied. Clearly, both the district court and the appellate court got it right rejecting the mere download of a digital file as a public performance since at no time during the download was the work perceptible (i.e., one could listen to the music during the downloading process).
The Supreme Court is loathe to hear arguments in instances where no circuit split is presented, as well as in instances where it may believe the subordinate tribunal articulated a proper interpretation of a statute.
As for the royalty calculation, deference to an appellate decision is the norm absent truly exigent circumstances. Here the appellate court had sent the case back down to the district court for a "do over". Certainly, the Supreme Court, operating with a limited time table for hearing cases, would not be inclined to interfere when a "do over" might render any subsequent decision by the trial court a moot question.
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LMAO, Pirate Mike! Who needs facts to write a story? Pirate Mike just pulls baseless opinions out of his ass. I'd love to hear the "logic" that went into this prognostication. I'm sure there was none. Faith-based FUD.
Pirate Mike doesn't have any anything "real" to write about, apparently. No worries, we all know his fertile mind will create more FUD where none yet exists. That's chubby's specialty.
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You would be the expert here ...
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Remember DVD rentals over the internet?
Didn't the judge in that case say that it was a public performance because the service was available to all members of the public?
(Gee, shouldn't Netflix, Amazon, or even Blockbuster, or all local DVD rental shops have to pay for public performances because their DVD's are available to members of the public?)
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Public performance
Playing music in private is not a public performance.
Streaming is going to be interesting. The substantive question is "who is performing it?". With a radio, for example, the answer is "the radio station" - which makes it a public performance by the radio station, for which they pay public performance rights. If you put a radio in a public place (e.g. a shop) then you, the radio-owner are also making a public performance, and you have to pay performance rights too.
With streaming, either the performer is the streaming service, performing the song to the public - in which case it is a public performance, or it is the listener at home, in which case it is not a public performance, but it is a distribution of the song from the service to the listener and then a private performance by the listener.
That's what the courts will have to establish. It's not obvious to me which one they will choose.
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The answer to most of the world's problems:
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but
This is because they only have ONE PC shared between all of them down in their special padded room (someone secreted bodily fluids onto the laptop so they got rid of it).
Now they have a nice 386 with 32mb ram and a rubber keyboard they can all bang their heads on merrily.
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