A music download is not a performance under the Copyright Act

Last week the Supreme Court made official what music buffs knew all along: a download of a sound recording is not the same as a public performance. (That consumers pay as low as 99 cents for a download and as high as $300 to attend a concert was not the issue.)  

Reportedly representing nearly 400,000 artists and publishers, ASCAP (American Society of Composers, Authors and Publishers) argued for a 2.5% royalty that would accrue if the download were deemed to be a public performance, within the meaning of Section 106(4) of the Copyright Act. In denying certiorari, the Supreme Court (in ASCAP v. United States, No. 10-1337) let stand a New York appellate court decision. Importantly for analysts, that court distinguished downloads from “streaming,” and said that a consumer is indeed listening to a performance when a computer streams a song.