## Facts

- ASCAP, a performing rights organization, licenses public performance rights in musical works under a long-running antitrust consent decree enforced in the Southern District of New York.
- Yahoo! and RealNetworks sought ASCAP blanket licenses for online uses of music, including streaming/webcasting and making downloadable music files available to users.
- The parties failed to agree on fees, triggering the consent decree’s rate-court process for setting reasonable license terms.
- A central dispute was whether an online download of a digital file containing a musical work constitutes a “public performance” under the Copyright Act.
- The rate court held that downloads are not public performances and set blanket license fees based on uses it treated as performances (e.g., streaming), excluding downloads from the performance calculus.
- ASCAP appealed the ruling on downloads; Yahoo! and RealNetworks cross-appealed the fee assessment.

## Issues

1. Whether a download of a digital file containing a musical work constitutes a “public performance” of that work under the Copyright Act.
2. Whether the rate court properly assessed reasonable ASCAP blanket license fees for Yahoo! and RealNetworks under the consent decree.

## Decision

- The Second Circuit affirmed the ruling that a download of a musical work does not constitute a public performance of that work.
- The court vacated the district court’s blanket license fee assessment and remanded for further proceedings consistent with its opinion.
- Disposition: affirmed in part, vacated in part, and remanded.

## Legal Principles

- A “public performance” requires a contemporaneous perceptible rendition of the work; a data transfer that merely delivers a file for later playback is not itself a performance.
- Digital downloads primarily implicate reproduction and distribution interests; streaming transmissions that are experienced as they occur may implicate the public performance right.
- Under the ASCAP consent decree, the rate court’s fee-setting authority is limited to reasonable fees for public performance licensing, not for uses outside the performance right.
- When the scope of what qualifies as a public performance is clarified, rate determinations resting on a different understanding must be reconsidered on remand.

## Conclusion

The court held that delivering a music file by download is not a public performance under copyright law, limiting ASCAP’s ability to charge performance royalties for downloads, and it required the rate court to reassess the blanket license fees for the online services under the corrected performance-right framework.


United States v. Am. Soc'y of Composers, Authors & Publishers, 627 F.3d 64 (2d Cir. 2010)