2010), was a United States Court of Appeals case involving copyright liability for third-party vendors that provide online music download services.

In particular, the Second Circuit ruled that music downloads do not constitute public performances, upholding the district court's decision and consequently preventing ASCAP from claiming higher royalty fees from Yahoo!

[1] ASCAP appealed the decision and requested a writ of certiorari for judicial review in the Supreme Court.

During the proceedings to establish a reasonable royalty rate, ASCAP claimed that individual downloads count as public performances, allowing a copyright holder's exclusive performance rights to be factored into the assessment of fees in addition to the exclusive rights of reproduction and distribution.

[4] This case centers around the controversial issue of royalty rates for internet radio under the Digital Millennium Copyright Act (DMCA).

The district court adopted a simple formula of a 2.5% royalty rate multiplied by the amount of revenue generated by the performance of musical works from ASCAP's repertory.

The court then identified the main issue under review, whether or not a download is a public performance, which would require separate compensation for the copyright holders.

The court immediately ruled out a download as being a dance or an act, and subsequently dissected the statutes of "recite," "render," and "play."

The court concluded that a musical performance "entails contemporaneous perceptibility," further citing the final clause of Section 101 as a confirmation of this definition.

They are simply transfers of electronic files containing digital copies from an on-line server to a local hard drive.

This decision serves to limit the reach of copyright holders in assessing various fees to content providers.