Tech Law Prof Blog

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.

Apple Gift Card Suit Filed

Apple is being sued over gift cards.  The claim, filed in federal district court in Illinois says Apple markets the cards saying that songs are available for 99 cents.  Low and behold, with variable pricing, songs may cost more that 99 cents, or even less than 99 cents.  That's why there are disclaimers that read something like "We reserve the right to alter these terms...."  I don't know if Apple has a disclaimer, but their lawyers can't be that dumb not to include one somewhere regarding gift cards.   File under stupid.

More in CNET.

Lawsuits Are the Hazzard of Blogging

Blogging can get someone in trouble.  Just ask Lyndal Harrington who was just released from jail yesterday on a contempt of court charge for failing to turn over a computer as part of a defamation suit against her.  Harrington has been sued by Virgie Arthur, mother of the late Anna Nicole Smith.  The details of the suit are in this article from the Houston Chronicle web site.  The most interesting part is a short statement from Robert Cox, president of the Media Blogger Association who notes that suits against bloggers are more common these days.  His best line is “Bloggers have a tendency to believe myths — like that they are judgment-proof.”  Sad but true.  His organization offers blogger insurance for judgments.  The article also contains a link to the Media Resource Law Center which maintains a list of suits against bloggers, including status updates.  Some of the entries contain links to the orders and documents in the various cases.  It is a useful resource when tracking these things.