Supreme Court Supports Lower Court: Downloading Music is Not Illegal

| by Michael Allen

In a huge blow to the recording industry, the Supreme Court let stand on Monday a New York appeals court ruling that a traditional Internet download of sound recording does not constitute a public performance of the recorded musical work under federal copyright law.

While downloading music is not illegal, the actual playing or storing of the downloaded music was not addressed in the case.

The not-for-profit American Society of Composers, Authors and Publishers (ASCAP) appealed the ruling to the Supreme Court and claimed downloading was costing its members tens of millions of dollars in potential royalties each year.

ASCAP argued that digital downloads were also public performances for which the copyright owners must be compensated. But a federal judge and the appeals court rejected that argument.

At issue was a section of the Copyright Act stating that to perform a work means to recite, render, play, dance or act it either directly or by means of any device or process.

“Music is neither recited, rendered, nor played when a recording (electronic or otherwise) is simply delivered to a potential listener,” the appeals court ruled.

The federal government opposed the appeal. U.S. Solicitor General Donald Verrilli said that the downloading itself was not a performance of the work and the musical work was not played during the transfer.

Washington attorney Theodore Olson, a Bush administration solicitor general, represented ASCAP in the appeal.

He said the appeals court ruling improperly narrowed the right to perform copyrighted musical works publicly and placed the United States in violation of intellectual property treaties and other international agreements.

The Supreme Court denied the appeal without comment.

The appeals court also ruled that fees paid by Yahoo Inc and RealNetworks Inc for licenses to play music on the Internet should be recalculated.