The Supreme Court is declining to decide whether downloading a song is a public performance requiring artists to get paid additional royalties.

The American Society of Composers, Authors and Publishers, known as ASCAP, asked the justices to review a lower court decision that said downloading songs from iTunes, Amazon, eMusic or even music-sharing services do not count as public performances, and hence additional royalties are unwarranted. On Monday, the court let stand that decision without comment.

The group, with 400,000 members, maintained in its petition to the justices that the Copyright Act demanded the extra royalties, which could amount to tens of millions of dollars in extra revenue annually. The appeals court said that downloading a music file is more aptly characterized as "reproducing" that file, and not subject to performance rights.

The 2nd U.S. Circuit Court of appeals, ruling against ASCAP, said "perform," as outlined in Section 101 of the Copyright Act, means to "recite, render, play, dance or act it either directly or by means of any device or process."

ASCAP licenses the right to perform publicly the musical works of its members to a diverse array of music users, including internet and network-based sites and services, television and radio stations, restaurants, hotels and sports arenas.

The artists, represented by Theodore Olson, a former U.S. solicitor general, told the justices in their petition that the case was of "vital importance." (.pdf)

"If the Second Circuit’s decision stands, songwriters and music publishers across the nation will be denied their statutory right to receive royalties for public performances when their works are downloaded over the internet – which is already one of the most prevalent means for the dissemination of copyrighted musical works," Olson wrote.

The government, backed by Solicitor General Donald Verrilli Jr., a former Recording Industry Association of America attorney, urged the justices to reject ASCAP's petition.

"Because the download itself involves no dancing, acting, reciting, rendering, or playing of the musical work encoded in the digital transmission, it is not a performance of that work," the government wrote the justices.

See SCOTUSblog for documents in the case.

Photo: Phil Dokas/Flickr

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