Second Circuit Rules That Public Performance Rights Don’t Apply To Certain Digital Downloads

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The Second Circuit, on September 28, 2010, held in United States v. ASCAP, in the Matter of Applications of RealNetworks, Inc., Yahoo! Inc.,1 that there is not a public performance of a musical work embodied in a downloaded sound or video file, unless the downloaded file is simultaneously perceptible to the recipient during the transmission of the download. This means that if the recipient of the downloaded file is not able to watch or listen to the digital file while it is being downloaded, then no public performance licenses (e.g., licenses from the performing rights societies ASCAP, BMI, and SESAC) are required for providing such downloads. The ruling covers both sound recordings and audiovisual works, and is significant to companies engaged in the distribution of rich media incorporating musical works.

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