Supreme Court Declines ASCAP Appeal of Ruling that Digital Downloads are Not Public

(Washington, D.C. – October 5, 2011)  The Digital Media Association praised the U.S. Supreme Court’s rejection of an ASCAP appeal of a lower court’s ruling that digital music downloads do not constitute public performances and therefore are not subject to performance royalties.

“A lower court rightly ruled that ASCAP does not deserve an additional royalty payment from online music services that provide downloads, and DiMA and our member companies are pleased that the Supreme Court declined ASCAP’s request for appeal of that decision,” stated Lee Knife, DiMA’s interim Executive Director. “DiMA’s members  are committed to paying appropriate royalties, and they pay songwriters and music publishers fairly and fully for digital downloads when reproduction and distribution rights are implicated.”

A download is a distribution of a copy of a musical work, which entitles copyright owners to a statutory royalty for the distribution of that reproduction. ASCAP, which collects royalties on behalf of songwriters for public performances, such as radio airplay, had argued that the transmission of a download to a purchaser should be considered a performance as well as a distribution, and should bear BOTH a reproduction-distribution royalty and a performance royalty.  The 2^nd Circuit however, determined that “Unlike musical works played during radio broadcasts and stream transmissions, downloaded musical works are transmitted at one point in time and performed at another.  Transmittal without a performance does not constitute a ‘public performance.’”