Ringtones Are Not Public Performances

Customized ringtones are a popular way for people to express their individuality and/or tastes, assuming millions of phones playing Jay-Z's Run This Town is an expression of individuality.  Phone companies encourage customers to download ringtones.  Record companies have discovered another revenue source that didn't exist fifteen years ago.  Even the artists make money from the sale of ringtones.  However, these are all one time sales.  ASCAP, one of the two major U.S. performance rights organizations, believes that somebody owes someone money every time one of those thirty second song snippets announces a phone call.  To it, that's a public performance no different than a radio station playing that same song.  So ASCAP sued the phone carriers.  ASCAP nobly makes it clear that individual cell customers are not the target.  Instituting suit against every cell phone user with a custom ringtone is a dead bang money loser.  Just ask the RIAA about the cost effectiveness of that strategy. 

The case was pending until yesterday when a federal judge decided that ringtones do not constitute a public performance under the copyright laws.  Common sense and law coincided in this case.  The court was pretty clear.  Cell phone users are not liable for royalty payments and the carriers are not secondarily liable.  Section 110(4) of the Copyright Act exempts "[any] performance of a nondramatic literary or musical work otherwise than in a transmission to the public, without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers, if [] there is no direct or indirect admission charge. . . (quoted from the opinion at 12).  Given that cell phones announce phone calls and are not sources of commercial public entertainment, the exemption in 110(4) covers the circumstances. 

Part of the Court's analysis turned on whether there was a commercial purpose in the playing of the ringtone.  The only example was one raised by ASCAP where there was a performance that used ringtones as part of the 2006 Chicago Sinfonietta "Concerto for Orchestra and Cell Phones."  Even then the Verizon customers who "played" their cell phones did not have a commercial purpose for their performance.  Rather, it was the Chicago Sinfonietta who received fees and charged admission for the performance.  Verizon was kind enough to point out that ASCAP licensed the orchestra at the time of the performance (opinion at page 25, footnote 16).

With no direct infringement, there is no contributory infringement on the part of Verizon and the other carriers.  The rest of the opinion analyzed the variations of what constituted a transmission, such as whether the transmission of the ringtone from the carrier to the customer comprised another public performance that would force the carrier to pay another fee.  The court patiently went through every line of argument and rejected them all.  Expect an appeal, though it's hard to imagine an appellate court disagreeing with the reasoning in this opinion.  The case is In Re Application of Cellco Partnership D/B/A Verizon Wireless Related to United States of America v. American Society of Composers, Authors, and Publishers (text of the opinion courtesy of the EFF).  [MG]