On October 3, 2011, the Supreme Court of the United States denied certiorari to the American Society of Composers, Authors and Publishers (ASCAP).[1] In its petition to the Court, the ASCAP sought to overturn the Second Circuit Court of Appeals’ holding that the downloading of a sound recording does not constitute a public performance of such work under the copyright law.[2]

ASCAP and other organizations issue collective licenses to radio stations and other broadcasters which allow such licensees to play all of the music within their possession without having to obtain individual licenses for each recording.  It is the copyright owner of the underlying work – not of the particular recording – that benefits from these blanket licenses.  In the ever-changing digital era, intellectual property law sometimes struggles to keep up.

In this particular case, ASCAP was attempting to get “reasonable” license fees from America Online LLC, Yahoo! Inc., and RealNetworks, Inc. – internet service providers who use copyrighted sound recordings.[3] Because the parties could not agree on a licensing agreement, ASCAP applied to the Southern District of New York to determine what reasonable fees were.  That court granted summary judgment on the service providers’ motion that downloading a digital sound recording from their sites did not constitute a “public performance.”[4] ASCAP appealed this decision up to the Second Circuit, who affirmed the lower court’s holding that internet downloads cannot be considered “public performances” under the Copyright act.[5]

Under the Copyright Act, “perform” means to “recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.”[6] Under this broad definition, almost any time a sound recording is played, it is performed, even if the “performance” involves singing a copyrighted work in the shower.[7]

While a copyright owner has certain exclusive rights over public performances, he cannot claim infringement for any performance.  The key element is that the performance is public.[8] “A work is performed ‘publicly’ if it takes place ‘at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.’”[9] Thus, family and friends listening to a new album in someone’s living room is not a violation, but a radio broadcast is.