The first Monday in October holds a special place in American jurisprudence. That is the day the United States Supreme Court begins its new term. Prior to commencing arguments in cases it is going to hear, the Court issues a large number of rejections of appeal requests from parties requesting re-consideration of lower court rulings.

Yesterday, the Supreme Court refused to review a decision by a federal appeals court in New York on a very high-stakes Internet law and copyright law issue.

The crux of that prior decision is that a traditional Internet download of a sound recording does not constitute a “public performance” of the recorded musical work under federal copyright law. Classification as a public performance is one of the key criteria that would cause one’s interaction with a copyrighted work to be unauthorized unless performance royalty compensation was paid or permission was otherwise granted.

The scope of that ruling is more narrow than one might surmise on first blush. The appeals court declined to characterize just the act of a legal download itself (and the resultant delivery of the content to the downloader) as “playing” the work, which is one component of the Copyright Act’s definition of a “public performance.” The ruling is further limited in scope because, with the Supreme Court’s lack of substantive review, it is currently only good law in the Second Circuit where the New York appeals court sits.

The American Society of Composers, Authors and Publishers (commonly known as “ASCAP”) had sought the appeal due to the tremendous financial implications for its members of an adverse judgment. Those members include more than 390,000 composers, songwriters, lyricists and music publishers in the United States who exclusively license their music through ASCAP (ASCAP licenses nearly half of the musical works played online).

Interestingly, the federal government opposed the appeal. ASCAP’s attorney opined that the ruling places the United States in violation of intellectual property treaties and other international agreements. The Supreme Court did not reach this issue, as it rejected the appeal request without comment.

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