Advanced Copyright Issues on the Internet - Fenwick & West LLP

4. United States v. ASCAPIn United States v. ASCAP, 237 the court ruled that the downloading of a digital music fileembodying a particular song does not constitute a public performance of that song. The casearose out of an application that Yahoo, RealNetworks and AOL made to ASCAP for a license topublicly perform the musical works of the ASCAP repertoire by means of their respectiveInternet services. After the parties were unable to agree on a licensing fee, ASCAP applied tothe court for a determination of a reasonable fee. The parties cross-moved for partial summaryjudgment on the issue of whether downloading a digital music file embodying a song constitutesa public performance of the song. 238The court noted that the copyright statute provides that, to “perform” a work means to“recite,” “render,” or “play” it, and the plain meanings of each of those terms requirecontemporaneous perceptibility. Accordingly, the court concluded that for a song to be“performed,” it must be transmitted in a manner designed for contemporaneous perception. Thedownloading of a music file is more accurately characterized as a method of reproducing thatfile, rather than performing it. 239 The court also noted that its interpretation was consistent withthe <strong>Copyright</strong> Office’s position in its 2001 DMCA Section 104 Report to Congress, in which the<strong>Copyright</strong> Office stated that “we do not endorse the proposition that a digital downloadconstitutes a public performance even when no contemporaneous performance takes place.” 2405. The Cablevision CaseIn The Cartoon Network LP v. CSC Holdings, Inc. 241 the Second Circuit ruled onwhether the playback through Cablevision’s network of copies of cable programs stored on itsservers at the instance of its customers as part of its “Remote Storage” Digital Video Recorder(RS-DVR) system constituted unauthorized public performances of the stored works. Thedetailed facts of how the RS-DVR system worked are set forth in Section II.A.4(n) above.Cablevision argued that the transmissions generated in response to customer requests forplayback of programs stored on its network servers by customers did not constitute public237238239240241485 F. Supp. 2d 438 (S.D.N.Y. 2007).Id. at 440-41. The applicants conceded that the streaming of a musical work does constitute a publicperformance. Id. at 442.Id. at 443-44. The court also found this interpretation consistent with the holdings of those courts that haveaddressed downloading of music over the Internet using peer-to-peer file transfer programs. For example, thecourt cited the holding in Maverick Recording Co. v. Goldshteyn, 2006 U.S. Dist. LEXIS 52422, at *8(E.D.N.Y. July 31, 2006) (“Downloading and uploading copyrighted files from a peer-to-peer networkconstitutes, respectively, reproducing and distributing copyrighted material in violation of 17 U.S.C. § 106.”)(emphasis added). ASCAP, 2007 U.S. Dist. LEXIS 31910 at *14.Id. at 444 (quoting U.S. <strong>Copyright</strong> Office, Digital Millennium <strong>Copyright</strong> Act Section 104 Report to the UnitedStates Congress at xxvii-xxviii (Aug. 29, 2001)).536 F.3d 121(2d Cir. 2008), cert. denied sub nom. CNN, Inc. v. CSC Holdings, Inc., 2009 U.S. LEXIS 4828(2009).- 68 -