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US Court Disagreed Digital Downloads Are Public Performance

October 11, 2010

ASCAP (American Society of Composers, Authors and Publishers) failed its attempt to prove that digital downloads constitute a public performance. The US court disagreed with this statement, deciding that a download is clearly not a dance or any other act of performance of the copyrighted work, as the Section 101 of the Copyright Act stipulates.

ASCAP has been trying to gain more revenue from everywhere for a long time now, though it luckily has had little success. This royalty collecting group has record of being repeatedly trying to extend the definition of the term “public performance” to truly unbelievable level.

Jut a few months ago ASCAP tried to prove that a mobile phone ring tone heard in public constitutes a clear public performance, according to the definition given in the Copyright Act, arguing in the court that even if the ring tone is not heard by anyone, but just set to play, it’s still considered as public performance. Fortunately, New Your District Judge disagreed with that claim and decided that a ring tone is subject to exempt, because it usually occurs just within a normal circle of one’s family and social acquaintances, meaning that no profit can be made from it.

Besides, ASCAP even declared war on free culture, opposing Creative Commons licensing somehow used by many of its members. Only last week ASCAP was fighting Yahoo and RealNetworks because of digital downloads, trying to argue that downloads communicate a public performance.

Fortunately, the US Court disagreed again, arguing that a download can’t be qualified as a dance or any other act related to Section 101 of the Copyright Act, where a definition of a public performance is given as “recite,” “play” and “render.” So, the court ruled that since a download can’t be heard, viewed, or otherwise contemporaneously perceived by an alleged infringer, it clearly can’t be considered as public performance. A download itself is a mere transmission of information from one information tank to another, and is not heard or viewed during the time of transmission.

American Society of Composers, Authors and Publishers is apparently very disappointed with this decision of the US court. ASCAP is currently occupied by studying the court ruling in order to determine what kind of further action it can take now.

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