The mobile media market has been relatively a strong one for quite some time. While sideloading and other customer-side practices make it somewhat easier and less expensive for users to create and install their own ringtones and other mobile media, there is still considerable convenience in subscribing to a relatively affordable paid download service to get your ringtones and full songs. To that end, many companies and providers have taken it upon themselves to find new and effective ways to make ringtones and other mobile media available to their users for a nominal fee. The competition has been fierce, but generally civil.
In June of this year, the American Society of Composers, Authors and publishers filed a suit against communications company AT&T, on the alleged grounds that each time a musical ringtone plays in public it should be considered a performance that thus violates copyright law. This violation supposedly goes even beyond the licensing arrangement that mobile content providers and operators already have with songwriters, publishers and record labels, which typically constitutes of the payment of a licensing fee for each ringtone download. ASCAP contended in the lawsuit that it was owed additional royalties for these supposed public performances – as previously mentioned, even covering a phone simply going off in public – and filed the civil action suit in the US District Court of the southern district of New York.
Recently a federal court ruled against this claim, contending that ringtones played aloud in public do not constitute a true performance. While at one some time ringtone providers did pay for performance rights due to a decision in a case involving AOL – in fact some continue to do so – the general precedent set by this recent ruling is that this is not necessary as per the rhetoric of the ASCAP argument.
US District Judge Denise Cote noted that the carrier cannot be held liable for where and when a ringtone plays, considering they have no control what users do with the ringtones after downloading them. Customers decide how to set their phone’s ring controls, and the carriers earn no revenue when the ringing happens. Furthermore, Judge Cote specified that the definition of “public performance” usually meant in a context where a “substantial number of persons outside of a normal circle of its social acquaintances is gathered.” She further pointed out that “even if the customer could listen to the download as it was being received, and contemporaneously perceive it as the musical work, that would not constitute a public performance,”
Electronic Frontier Foundation staff attorney Fred von Lohmann comments that, in fact, “ASCAP is wrong.” To give further contextual logic, he further explains, “Even if the incidental mobile phone playback of a short snippet in a public place were viewed as a ‘public performance’ (something no court has ever held, and that would also put you in jeopardy for playing your car radio with the window down), the Copyright Act has a specific exception, 17 U.S.C. 110(4), that covers performances made ‘without any purpose of direct or indirect commercial advantage.’ That should take care of ringtones going off in the restaurant.”
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