US Supreme Court Lets Stand Ruling That Says Music Downloads Are Not Public Performances

from the thank-goodness-for-little-things dept

Mon, Oct 3rd 2011 3:55pm — Mike Masnick

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

48 Comments

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Anonymous Coward, 3 Oct 2011 @ 4:03pm

The supreme court didn't "let stand", they only declined to hear the case because there isn't any different views between the circuits to resolve, no pressing issue that requires a resolution for the public. A decline isn't anything other than a "hasn't reached the level that we would spend time on it".

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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Anonymous Coward, 3 Oct 2011 @ 4:04pm

I wonder when ASCAP, BMI and others will be slapped in the US with copyfraud, probably not in the near future but one can still dream.
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Anonymous Coward, 3 Oct 2011 @ 4:06pm

Any implications for streaming sportsfans?
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A Dan (profile), 3 Oct 2011 @ 4:07pm

What do you mean?
How can't it be a public performance if a member of the public is downloading it?!
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btr1701, 3 Oct 2011 @ 4:11pm

Re:
> The supreme court didn't "let stand", they
> 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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Chosen Reject (profile), 3 Oct 2011 @ 4:19pm

Re:
You didn't read the article did you? They did "let stand", it's just the standing is in the second circuit. All that other stuff you wrote was already talked about in the article. I guess reading it first would have kept you from getting a first post, though, so carry on.
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abc gum, 3 Oct 2011 @ 4:41pm

Re: What do you mean?
"How can't it be a public performance if a member of the public is downloading it?!"

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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Anonymous Coward, 3 Oct 2011 @ 4:43pm

Re: What do you mean?
Simple, they forgot to include while in public.

It is a public performance if the a member of the public might download it in public.
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Anonymous Coward, 3 Oct 2011 @ 4:43pm

Re:
Your side lost. Get over it.
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Anonymous Coward, 3 Oct 2011 @ 4:44pm

Re: Re:
Nope, they declined to hear the case. They didn't pass judgement on the ruling, they just declined to let it go further.
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Anonymous Coward, 3 Oct 2011 @ 4:45pm

Re: Re:
It isn't "my side" (I certainly wouldn't have argued such a stupid case), and the "loss" occurred a while ago.

I have nothing to get over. What about you?
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Anonymous Coward, 3 Oct 2011 @ 4:46pm

Re: What do you mean?
How can the copying of bits from one machine to another in any way, shape, or form be considered a "performance"?

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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That Anonymous Coward (profile), 3 Oct 2011 @ 4:51pm

Re: What do you mean?
The magic pixies who live inside the thinking box, when you double click it they are forced to once again pick up their instruments and reproduce the drivel to appease their human captors.

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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Rikuo (profile), 3 Oct 2011 @ 4:58pm

Re: Re: What do you mean?
Thanks! Got a good chuckle out of this one!
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Anonymous Coward, 3 Oct 2011 @ 5:00pm

Re: Re: What do you mean?
Also, if they can't get this to be a public performance then the artist's kid(s) will starve. We must have this to save the children. And stop earthquakes. And terrorists. And communists. They started it all. If it weren't for those stinkin commies we wouldn't have this "free" stuff.
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Anonymous Coward, 3 Oct 2011 @ 5:09pm

Re:
Translation, the supreme court let the rulling of the lower courts stand.
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Anonymous Coward, 3 Oct 2011 @ 5:11pm

Re: Re: Re:
Hence they let it stand for whatever reason they had.
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Anon, 3 Oct 2011 @ 5:17pm

"It isn't "my side" (I certainly wouldn't have argued such a stupid case), and the "loss" occurred a while ago."

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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surfer (profile), 3 Oct 2011 @ 6:26pm

u know..
when you download a digital copy, nobody references the license, the distribution right, the public performance right, geez, did I miss a right? My rights override your privilege every single day of the week, day, and hour.

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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Anonymous Coward, 3 Oct 2011 @ 6:28pm

Re: Re: Re:
"It isn't "my side""

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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Anonymous Coward, 3 Oct 2011 @ 8:42pm

There seems to be a bit of confusion here. In the context of downloading a digital file, all parties agreed that a digital file is a copy as to which the right of reproduction pertains. Hence, a royalty was properly due. Where ASCAP went overboard was to then insist that an additional royalty was due because in its reading of Section 101 of the Copyright Act, the term "render", associated with the definition of "performance", could be interpreted to mean "deliver". Of course, this was an overreach at odds with the overall structure of the act, as well as a conflation of the the performance right with the distribution right.

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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Anonymous Coward, 3 Oct 2011 @ 9:03pm

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.

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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techflaws.org (profile), 3 Oct 2011 @ 10:34pm

Re:
Boring troll is boring.
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Any Mouse (profile), 3 Oct 2011 @ 10:42pm

Re:
It's an opinion blog. We discuss our opinions on other news stories. You continue to miss the point, don't you? Seriously, are you sitting there with some huge hard-on drooling on yourself writing this crap?
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The eejit (profile), 3 Oct 2011 @ 11:01pm

Re:
A download is not a pubio performance. That's porn. Although, if you're not careful, you may still come down with a nasty virus either way.
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surfer (profile), 4 Oct 2011 @ 3:22am

Re:
a clear example of the MAFIAA FUD machine infuriated that someone is copying it's processes.
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Mike Masnick (profile), 4 Oct 2011 @ 3:49am

Re: Re: Re:
Nope, they declined to hear the case.

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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abc gum, 4 Oct 2011 @ 4:57am

Re:
"Pirate Mike just pulls baseless opinions out of his ass."

You would be the expert here ...
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Chris, 4 Oct 2011 @ 5:53am

Re:
Are you sure you know what "FUD" means?
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Anonymous Coward, 4 Oct 2011 @ 6:00am

Re: Re: Re: Re:
" You seem to be arguing that "declining to hear the case" and "letting the lower ruling stand" are mutually exclusive."

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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DannyB (profile), 4 Oct 2011 @ 6:14am

Remember DVD rentals over the internet?
Remember that company that was renting a DVD and a DVD Player to you over the Internet and would then stream the DVD player's output to your single viewing screen?

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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Anonymous Coward, 4 Oct 2011 @ 7:18am

Re: Re: Re: Re: Re:
So they said nothing, right? So from now on for the second circuit the case law will be 'downloads are not public performances, right? How is that different from 'letting the lower ruling stand?' If there's a distinction to be made here at all it is completely without difference.
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Hephaestus (profile), 4 Oct 2011 @ 7:30am

Re: Re: Re: Re:
Mike, Question for you ...

With streaming no longer being a "public performance". How do you think this ruling will affect the Zediva appeal??
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HothMonster, 4 Oct 2011 @ 7:54am

Re: Re: Re: Re: Re:
bullshit that coin isnt metal, its gold!
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Jay (profile), 4 Oct 2011 @ 8:35am

Re: Re: Re: Re: Re:
Isn't that a different circuit?
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Ron Rezendes (profile), 4 Oct 2011 @ 8:44am

Re:
Thank you for a clear cut explanation of the legal ramifications. I wish other AC's actually contributed to the discussions in such a skillful manner!
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Anonymous Coward, 4 Oct 2011 @ 8:47am

Re: Re: Re: Re: Re:
You misread the 2nd Circuit opinion. Merely downloading a file without also contemporaneously listening to it is not a public performance. Streaming is, as all parties agreed, a public performance.
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Mike Masnick (profile), 4 Oct 2011 @ 10:01am

Re: Re: Re: Re: Re:
With streaming no longer being a "public performance". How do you think this ruling will affect the Zediva appeal??

Has nothing to do with streaming. Has no impact on Zediva.
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Mike Masnick (profile), 4 Oct 2011 @ 10:05am

Re: Re: Re: Re: Re:
There is a big difference

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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Mike Masnick (profile), 4 Oct 2011 @ 10:06am

Re: Re: Re: Re: Re: Re:
Streaming is, as all parties agreed, a public performance.

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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Anonymous Coward, 4 Oct 2011 @ 10:21am

Re: Re: Re: Re: Re: Re: Re:
"Streaming is, as all parties agreed, a public performance."

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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RIchard Gadsden, 4 Oct 2011 @ 10:27am

Public performance
The intent of the public performance right law is that you can't buy a record and then play it in public without paying the songwriter and singer for each 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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Anonymous Coward, 4 Oct 2011 @ 11:22am

Re: Re: Re: Re: Re: Re: Re:
See the first full paragraph on page 18 of the 2nd Circuit's opinion.
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Mike Masnick (profile), 4 Oct 2011 @ 11:34am

Re: Re: Re: Re: Re: Re: Re: Re:
See the first full paragraph on page 18 of the 2nd Circuit's opinion.

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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Mike Masnick (profile), 4 Oct 2011 @ 2:21pm

Re: Re: Re: Re: Re: Re:
Hmm. Other reports that are also claiming the Supreme Court let the lower court decision stand:

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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Almost Anonymous (profile), 4 Oct 2011 @ 3:21pm

Re: Re: Re: Re: Re:
"""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)."""

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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Gendo Ikari, 7 Oct 2011 @ 11:58am

The answer to most of the world's problems:
"The first thing we do, let's kill all the lawyers" - The Bard
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hmm (profile), 9 Oct 2011 @ 1:06pm

but
BUT a download to ASCAP IS a public performance.

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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