* Tens of millions of dollars in royalties at stake
* U.S. government urged justices to reject appeal
* Group said digital downloads are public performances
By James Vicini
Oct 3 The U.S. Supreme Court let stand on
Monday a ruling that a traditional Internet download of sound
recording does not constitute a public performance of the
recorded musical work under federal copyright law.
The justices refused to review a ruling by a U.S. appeals
court in New York that the download itself of a musical work
does not fall within the law's definition of a public
performance of that work.
The not-for-profit American Society of Composers, Authors
and Publishers (ASCAP) appealed to the Supreme Court. It said
the ruling has profound implications for the nation's music
industry, costing its members tens of millions of dollars in
potential royalties each year.
ASCAP says more than 390,000 composers, songwriters,
lyricists and music publishers in the United States exclusively
license their music through the organization. It licenses
nearly half of all of the musical works played online,
according to the court record in the case.
The federal government opposed the appeal. U.S. Solicitor
General Donald Verrilli said the appeals court's ruling was
correct and comported with common understanding and sound
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
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.
Verrilli agreed. He 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
(YHOO.O) and RealNetworks Inc (RNWK.O) for licenses to play
music on the Internet should be recalculated. That part of the
ruling was not at issue before the Supreme Court.
The Supreme Court case is ASCAP v. United States, No.
(Reporting by James Vicini, Editing by Maureen Bavdek)