July 6, 2009
ASCAP Says Cell Ringtones are Public Performances - Pay Up!
One of the more outrageous attempts of a dying music industry to squeeze money from consumers is coming from the American Society of Composers, Authors, and Publishers (ASCAP). The royalty collection agency represents song writers, among others, and has sued AT&T, Verizon, and other wireless carriers for royalty payments due whenever a cell phone rings by playing a snippet of an ASCAP artist's song. The theory is that these rings are public performances of the song, inducing liability. The wireless industry certainly promotes ringtones, as do the record labels. It is big business for them. But a performance royalty for when the phone rings? I think not.
Assuming I have a cell phone with a covered song as a ringtone (and I don't, I have a generic sound), is it public if it rings in my home or my car? How can ASCAP tell the difference between these locations and say, the train? Would I be liable for one and not the other? After all, if I'm liable, I want to limit my liability to those situations that can be characterized as "public." The example that the Electronic Frontier Foundation uses consists of someone driving with their car windows down and playing the radio or a CD. Are these public performances? I would assume ASCAP would probably say yes, though the difficulty of nailing an individual consumer for blasting a tune is different than nailing a corporation for selling 10 seconds of a licensed recording. One has money, and the other would just as easily (and quietly) pirate a ringtone via legitimate software than pay another fee. Other performance rights societies have weighed in through amicus briefs supporting ASCAP.
I think the wireless industry would just as easily stop distributing ringtones if a decision against them yielded significant financial damages. This would, in effect, reduce a revenue stream for the labels and ultimately the artists/copyright holders. Maybe that wouldn't be a bad thing.
The EFF has kindly put up a page with documents in the case, here.
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Even assuming the phone playing a ringtone is (sometimes) a public performance, I'm not following the theory of AT&T's liability. How are they complicit in a "public performance" when their subscriber elects to use a copyrighted ringtone? If I give a CD to a friend, for instance. and he plays it in public, how am I liable?
Posted by: Jim White | Jul 11, 2009 4:00:35 PM