The Second Circuit Court of Appeals recently affirmed a ruling against the American Society of Composers, Authors and Publishers (“ASCAP”), confirming the decision that music downloads are not “public performances,” and therefore copyright owners are not entitled to additional royalties. 

Essentially, a music download creates a copy of the music, entitling the copyright owner to a mechanical royalty. However, the Court found that, because users don’t hear the song during a download and until transmission, it is not considered a public performance. The Court analyzed Section 101 of the United States Copyright in making its decision. See 17 U.S.C. 101 et al.

In addition, reports state that the Court referred back to the District Court to determine the issue of fees, further stating that the lower court “did not adequately justify the way it measured the value of music to the digital service and set a 2.5% royalty rate.”