File this one under “privileged glimpses of the bloody obvious.” In a development that could be a surprise only to ASCAP and its counsel, the Supreme Court today has rejected ASCAP’s petition for certiorari, leaving in place the Second Circuit’s ruling that the mere act of downloading a sound recording does not constitute a public performance of the downloaded song.
ASCAP has wasted several years and a large sum of songwriters’ money pushing the argument that digital download services should have to pay ASCAP for a public performance license, even though they are already paying music publishers for the reproduction and distribution rights associated with the download. Of course, as the Second Circuit rightly recognized, a particular service could be set up to provide a public performance (i.e., stream) of a recording at the same time the song is being downloaded, and a separate license would certainly be needed for such a performance. ASCAP’s position was more extreme, however, claiming that the download itself constituted a public performance. This was always an absurd argument, and has been roundly rejected at every level. Now that the Supreme Court has refused to hear an appeal from the Second Circuit decision, one hopes that ASCAP will finally accept reality, although I have my doubts.
Here is the Supreme Court docket, indicating the denial of cert: