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. [Read more…]
Having watched the oral arguments in the ASCAP and BMI appeals of the DMX commercial background music service rate decisions, I thought I would post a few of my impressions.
Overall, the arguments went as I expected. Seth Waxman and Ted Olson performed like the former Solicitors General that they are: very polished speakers. But they argued as if this was a Supreme Court case, and it is not (at least not yet). Both emphasized big-picture policy grounds over the specific evidentiary record in the case. On the rate side of the equation, both ASCAP and BMI argued that both rate court judges erred, as a matter of law, by rejecting ASCAP’s and BMI’s proposed benchmarks. The PROs seem to believe that [Read more…]
Of interest to those of us who practice in the area of compulsory (or consent-decree) copyright licensing and rate-setting: oral argument will be heard by the Second Circuit this Thursday, June 16, in two appeals (one by ASCAP and one by BMI) of separate rate court decisions won by commercial background music provider DMX. In both cases, the respective district court judge (Judge Stanton handles rate-setting litigation under the BMI consent decree and Judge Cote recently took over the ASCAP rate-setting docket) substantially decreased the prior rate charged by ASCAP and BMI for the the right to publicly perform the songs in their respective catalogues as part of a commercial background music service (i.e., the music you hear in the background while you shop in a retail store). [Read more…]