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U.S. Supreme Court Denies Certiorari in ASCAP v. United States

By Brendan Mee

On Monday October 3rd, the Supreme Court denied certiorari in American Society of Composers, Authors and Publishers (ASCAP) v. United States, ending ASCAP's bid to have digital downloads over the Internet characterized as "performances" under the Copyright Act. (American Society of Composers, Authors and Publishers (ASCAP) v. United States, 627 F.3d 64 (2d Cir. 2010), cert. denied, 565 U.S. __, (U.S. Oct. 3, 2011)(No. 10-1337).)

Under an antitrust consent decree from 1941, the Southern District of New York has rate-setting authority to determine what ASCAP can charge users for a blanket license to publicly perform compositions from the ASCAP catalog. Thus, the United States was the defendant in the appeal, while the underlying dispute was between Yahoo! and Real Networks (the Internet providers), and ASCAP, over the terms of the blanket license.

The question presented in the cert Petition was whether a music download constitutes a "performance" for which ASCAP was owed a royalty under Section 106(4) of the Copyright Act. The Second Circuit made a sharp distinction between music downloads and music streaming, and agreed with the district court that the plain meaning of the Copyright Act could only be read to imply that a "performance" requires a "contemporaneously perceptible performance." Therefore, the Second Circuit did not consider a music download to be a "performance."

Ted Olsen presented the case for ASCAP, which had its own "plain meaning" argument, relying to some extent on "neighboring provisions" of the Act, rather than on the Act's definition of "perform," the latter on which the Second Circuit relied heavily to reach its decision. The Petitioner also argued that the Second Circuit's distinction between downloading and streaming would be unworkable in practice as technology developed. Most interestingly, ASCAP argued (along with several amici) that the decision was inconsistent with the United States' obligations under the WIPO Copyright Treaty. ASCAP argued that as a result of the consent decree, the Second Circuit had exclusive jurisdiction over the "vast majority of disputes" regarding public performance rights, and therefore. Further, the Petitioner argued that other appellate courts were unlikely to hear such cases, and the importance of the case at hand warranted resolution on the merits, even in the absence of a circuit split on the issue.

In the Respondent's Brief in Opposition, the United States echoed the Second Circuit's statutory construction. It reiterated that there was no circuit split warranting review by the Supreme Court, and argued that the Second Circuit's application of U.S. law was fully consistent with the United States' obligations under the WIPO Copyright Treaty, which in its view merely required that the acts covered under the Treaty are covered by some exclusive right under U.S. law.

One cannot speculate what prompted the Supreme Court to decline the case. Certainly it was a tough case for the Petitioner in light of the language in the Copyright Act defining "performance;" but the loss for ASCAP was also another hard break for songwriters and composers already badly hurt by technology shifts.

Below are links to the briefs:

Petition for certiorari : http://sblog.s3.amazonaws.com/wp-content/uploads/2011/06/10-1337.pdf

Brief in opposition: http://sblog.s3.amazonaws.com/wp-content/uploads/2011/08/09-26-Composers-BIO.pdf

Amicus brief of Broadcast Music, Inc.: http://sblog.s3.amazonaws.com/wp-content/uploads/2011/08/09-26-Composers-Broadcast-Music.pdf

Amicus brief of Independent Music Publishers et al.: http://sblog.s3.amazonaws.com/wp-content/uploads/2011/08/09-26-Composers-Independent-Music-Publishers.pdf

Amicus brief of Ralph Oman: http://sblog.s3.amazonaws.com/wp-content/uploads/2011/08/09-26-Composers-Ralph-Oman.pdf

Petitioner's reply: http://sblog.s3.amazonaws.com/wp-content/uploads/2011/08/09-26-Composers-Petitioners-reply.pdf

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This page contains a single entry from the blog posted on October 5, 2011 7:34 PM.

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