performing the plaintiff’s webcasts.^377 With almost no analysis, the court ruled that the plaintiff
had a likelihood of success on its copyright claim because “the unauthorized ‘link’ to the live
webcasts that [the defendant] provides on his website would likely qualify as a copied display or
performance of [the plaintiff’s] copyrightable material.”^378 The court found a threat of
irreparable harm to the plaintiff because the defendant’s links would cause the plaintiff to lose its
ability to sell sponsorships or advertisements on the basis that its website was the exclusive
source of the webcasts.^379
Although the unclear facts of this case make its reach uncertain, it could potentially imply
that any unauthorized link that causes material available on another site to be streamed through
an unauthorized site could constitute an infringing public display or performance.
- United States v. ASCAP
In United States v. ASCAP,^380 the district court ruled that the downloading of a digital
music file embodying a particular song does not constitute a public performance of that song.
The case arose out of an application that Yahoo, RealNetworks and AOL made to ASCAP for a
license to publicly perform the musical works of the ASCAP repertoire by means of their
respective Internet services. After the parties were unable to agree on a licensing fee, ASCAP
applied to the court for a determination of a reasonable fee. The parties cross-moved for partial
summary judgment on the issue of whether downloading a digital music file embodying a song
constitutes a public performance of the song.^381
The court noted that the copyright statute provides that, to “perform” a work means to
“recite,” “render,” or “play” it, and the plain meanings of each of those terms require
contemporaneous perceptibility. Accordingly, the court concluded that for a song to be
“performed,” it must be transmitted in a manner designed for contemporaneous perception. The
downloading of a music file is more accurately characterized as a method of reproducing that
file, rather than performing it.^382 The court also noted that its interpretation was consistent with
the Copyright Office’s position in its 2001 DMCA Section 104 Report to Congress, in which the
(^377) Id. at 18.
(^378) Id. at 12.
(^379) Id. at 15.
(^380) 485 F. Supp. 2d 438 (S.D.N.Y. 2007), aff’d, 627 F.3d 64 (2d Cir. 2010), cert. denied, 181 L.Ed.2d 232 (Oct. 3,
2011).
(^381) Id. at 440-41. The applicants conceded that the streaming of a musical work does constitute a public
performance. Id. at 442.
(^382) Id. at 443-44. The court also found this interpretation consistent with the holdings of those courts that have
addressed downloading of music over the Internet using peer-to -peer file transfer programs. For example, the
court cited the holding in Maverick Recording Co. v. Goldshteyn, 2006 U.S. Dist. LEXIS 52422 at 8
(E.D.N.Y. July 31, 2006) (“Downloading and uploading copyrighted files from a peer-to -peer network
constitutes, respectively, reproducing and distributing copyrighted material in violation of 17 U.S.C. § 106.”)
(emphasis added). ASCAP, 2007 U.S. Dist. LEXIS 31910 at *14.