The US Federal Court of Appeals for the Second Circuit decision in US v ASCAP (sometimes referred to as ASCAP v RealNetworks) (text of decision is available here) has generated a surprising amount of commentary - particularly from practitioners and academics outside of the United States. The two cruxes (cruxii?) of the decision are that the downloading of a digital song file does not constitute a "public performance" for purposes of US copyright law - and so entities (such as RealNetworks and Yahoo!, who were applicants and appellees in the case) who offer music downloading services to end-users are not liable to make payment to performing rights organizations such as ASCAP - and that the district court charged with setting the royalty which ASCAP could charge to online service providers made some analytical errors in deciding on a rate. For purposes of this post, only the first issue, that relating to public performances, will be discussed.

As Barry Sookman has noted (in a comprehensive post on the matter), the decision highlights differences between Canadian and US copyright law. Ben Chaliss, writing at the 1709 Copyright Blog (and from a UK perspective), also provides a useful review of the decision in "Internet rates, rights (and wrongs)". As Barry notes,

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