Prof. Jane C. Ginsburg, Columbia University School of Law
October 28, 2010

In the Paleolithic period of analog copies and communications, the boundary between the exclusive rights of reproduction and public performance was clearly marked.  The former right involved the making of physical copies; the latter did not.  Rather it entailed the direct apprehension of the work by the listening or viewing public.  With digital communications, the line blurs.  A digital transmission, whether of a book, or of a performance by someone reading the book aloud, implicates the communication of transitory copies between the point of origin of the transmission and its receipt in individual end-user computers.  (Whether those copies have copyright consequences is another matter not addressed here.)  Would it also be true that every communication of digital copies can also be a public performance by transmission?

Put another way, does every download implicate a public performance by transmission?  In U.S. v. ASCAP (In re Realnetworks),1 decided last month, the Second Circuit reviewed a fee determination for the use of ASCAP-represented songs by several online services.  The uses included both streaming and downloading; the court ruled that the downloads did not constitute public performances within the meaning of the United States Copyright Act.

The Copyright Act defines “to perform a work” as “to recite, render, play, dance, or act it, either directly or by means of any device or process….”  Construing this language, the court, affirming the district court’s interpretation of the statute, determined that the concept of performance implied simultaneous perception by the listener or viewer.  Because downloads deliver mute files for later listening, they are not performances.  (When the recipient listens to the music, there will be a performance, but it will not be “public” and therefore falls outside the composers’ exclusive rights.)

The downloads at issue in this appeal are not musical performances that are contemporaneously perceived by the listener.  They are simply transfers of electronic files containing digital copies from an on-line server to a local hard drive.  The downloaded songs are not performed in any perceptible manner during the transfers; the user must take some further action to play the songs after they are downloaded.  Because the electronic download itself involves no recitation, rendering, or playing of the musical work encoded in the digital transmission, we hold that such a download is not a performance of that work, as defined by §101.

The court also rejected ASCAP’s contention that the transmission of the music to users for downloading constituted a “public performance” because the copyright act defines that term to include “to transmit or otherwise communicate a performance or display of the work … to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.”  The argument failed, held the court, because the transmission must be of a “performance”; the transmission alone does not suffice:

A stream is an electronic transmission that renders the musical work audible as it is received by the client-computer’s temporary memory.  This transmission, like a television or radio broadcast, is a performance because there is a playing of the song that is perceived simultaneously with the transmission.  In contrast, downloads do not immediately produce sound; only after a file has been downloaded on a user’s hard drive can he perceive a performance by playing the downloaded song.  Unlike musical works played during radio broadcasts and stream transmissions, downloaded musical works are transmitted at one point in time and performed at another.   Transmittal without a performance does not constitute a “public performance.”

Under the Second Circuit’s interpretation, a “performance” “like a television or radio broadcast, is … a playing of the song that is perceived simultaneously with the transmission.”  Lest the court be misunderstood, it is important to note that broadcasts are performances whether or not they are in fact “perceived simultaneously with the transmission,” because they are “played” or “rendered” at the point of origin.  That is, even if no one turns on the radio or television to receive the transmitted program, the transmission nonetheless remains a transmission of a “performance.”  The same is true for streams that are “playing” as they are transmitted.  “Perceived simultaneously” therefore should be understood to mean capable of contemporaneous perception, or, as the district court put it, “transmitted in a manner designed for contemporaneous perception.”2  By the same token, the introduction of a short interruption, such as the three-second delay imposed on live broadcasts, should not deprive the reception of its “contemporaneous” character.

The Second Circuit noted (at footnote 9) that “Our opinion does not foreclose the possibility, under certain circumstances not presented in this case, that a transmission could constitute both a stream and a download, each of which implicates a different right of the copyright holder.”  This reservation, also expressed by the district court,3 is crucial, for the distinction between streaming and downloading may prove more daunting than the facts of this case suggest.  The requirement that, to be “performed” by transmission, the work must be transmitted in a manner designed for contemporaneous perception is consistent with the statutory definition of “to perform.”4   Nonetheless, the distinction between transmissions designed for contemporaneous perception and those designed for subsequent perception may not fully correspond to the spectrum of online communications of works that are performed or displayed.  The distinction does reflect the extremes of the spectrum: downloads of songs, for example, from iTunes (reproduction), and webcasting, in which songs are “playing” on a website to which users can connect (public performance).  The “contemporaneous perception” characterization also seems to fit audio and video on demand that the user receives “simultaneously” in real time.

But “simultaneously in real time” can in fact be elusive.  Suppose, for example, that the user connects to an online music service and listens immediately to the songs she selects.  For the Second Circuit, this communication would plainly be a public performance.  Now suppose that the music starts to play, but then the user chooses to “pause” the performance for a few minutes, or perhaps hours.  When she hits “play” again, the music resumes, but, depending on how the service works, the music might be “coming from” the server of the online service, with the “rendering” of the music therefore resuming in real time, or it may be emanating from the user’s own computer, having been “sent” to her computer when she requested to hear, or when she paused, the song.  If one takes “contemporaneous perception” at face value, perhaps only the first transmission is a “performance” of the music.  But it is problematic for the characterization of the exploitation to turn on what happens once the user pushes the pause button.5

The court’s reservation of the possibility that some transmissions may be hybrids calling into play both the reproduction and public performance rights may be pertinent to some other exploitations on the spectrum between delivery of mute files (downloads) and simultaneously perceived communications such as broadcasts and streaming.  If there is no “performance” unless the work is “played” either at the point of origin, or at the moment of receipt, then similar communications may be classified as performances (or not) solely on the basis of the technology of the transmission.  For example, suppose a listen-on-demand scheme that allows the consumer to listen once to the work at the time chosen by her.  The service does not in fact transmit the music at the time requested, but sends it during low traffic hours, to remain dormant on the listener’s computer until the appointed time.  To the listener, the transmission will “feel” like a “broadcast” or a “stream,” but it is technically a “download” because the music file will have been sitting inertly in the computer during the time between the actual transmission, say 4 a.m., and the time the user told the service she wanted to hear the song, say, 4 p.m.  Does it make sense for the rights at issue to depend on whether the service sends the song at 4 a.m. or 4 p.m.?

Or suppose that the work is being both broadcast and simultaneously streamed to the user’s set-top box, which records the work as it is being transmitted; the consumer views the recorded transmission at a later date.  Under a test which looks to whether the transmission was capable of contemporaneous perception, the broadcast or streaming is a public performance because it was communicated in a manner that allowed it to be simultaneously perceived, even though only the set-top box was home to perceive it.  The consumer’s subsequent private viewing, albeit consciously not contemporaneous with the initial communication, should not detract from the characterization of the initial communication as a public performance.  Because the court stopped short of imposing an “either/or” characterization of the exploitation, it left room for future adjudications to interpret the scope of the rights flexibly to address the full range of economic interests at stake.