Digital Downloads Not “Public Performances” Under Copyright Act

I’m an ardent supporter of intellectual property rights, but I’m an equally fervent supporter of intellectual honesty and consistency.  The argument that the download of a digital file–which is not perceivable by any human sense during the download process–could be considered a “public performance” always struck me as a bit disingenuous.  In my mind, a digital download, e.g., the delivery of a musical work, isn’t so different from me handing you a copy of a compact disc.  So it was not surprising when the Second Circuit Court of Appeals affirmed a decision out of the Southern District of New York holding that a digital download of a musical work does not, in fact, constitute a public performance.  The decision is below:

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