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Supreme Court: No Cert for Second Circuit Music Royalties Review

By Robyn Hagan Cain on October 06, 2011 10:08 AM

Is downloading a song the legal equivalent of performing a song when calculating music royalties? Last year, the Second Circuit Court of Appeals said it wasn’t.

Hoping for a final word from the Supreme Court on the issue? You’re out of luck. In its Monday orders, the Supreme Court denied a writ of certiorari in the case.

In case you missed the controversy when it was in the Second Circuit Court of Appeals, we’ll recap for you.

The American Society of Composers, Authors and Publishers (ASCAP) claims that its members should receive royalties every time their works are downloaded. According to ASCAP, downloading counts as a performance of a work.

Not so, said the Second Circuit Court of Appeals.

Section 101 of the Copyright Act defines "perform" as "recite, render, play, dance, or act ... either directly or by means of any device of process." According to the Second Circuit, downloading shares more in common with reproducing music than performing music.

In its ruling, the Second Circuit Court of Appeals noted that, "Music is neither recited, rendered, nor played when a recording (electronic or otherwise) is simply delivered to a potential listener," reports Reuters. That's bad news for ASCAP members, who would receive tens of millions of dollars in music royalties each year if downloading was classified as performance.

Now that the Supreme Court has declined to get involved in the case, ASCAP has exhausted its options. Under a 1941 settlement of an antitrust case against ASCAP, the U.S. District Court for the Southern District of New York has exclusive authority to setting fees for ASCAP licenses, according to Thomson Reuters.

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