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ARTICLE · 23 JANUARY 2011

New Media, Technology and the Law (January 2011)

Proskauer Rose LLP
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Downloading a copyrighted digital music file does not constitute a public performance under the Copyright Act, the U.S. Court of Appeals for the Second Circuit ruled.

United StatesMedia, Telecoms, IT, Entertainment
Proskauer'S And Technology Practice Group
Proskauer'S And Technology Practice Group
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Edited by Jeffrey D. Neuburger

COPYRIGHT

Download of Copyrighted Digital Music File Not a Public Performance under Copyright Act

Downloading a copyrighted digital music file does not constitute a public performance under the Copyright Act, the U.S. Court of Appeals for the Second Circuit ruled. The court upheld the lower court ruling that while companies that sell digital music online must pay a royalty fee for the right to make a copy of a work, they need not separately and additionally pay a royalty for downloading the copy. The appeals court found that a digital music file is neither recited, rendered or played within the Copyright Act definition of "perform," nor does downloading "show" a work or make it audible. "The downloaded songs are not performed in any perceptible manner during the transfers; the user must take some further action to play the songs after they are downloaded," the court commented.

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