New York court sides with consumers against ASCAP over ringtones
It would seem the legal system in the United States agrees that paying a performance fee every time a ringtone plays is pretty silly.
Back in June of this year, word got out that the American Society of Composers, Authors and Publishers (ASCAP) wanted a performance fee every time a ringtone played. The theory was that users were “violating copyright law by publicly performing it without a license,” but all of this could go away if the cell phone carriers paid a performance fee for each time a person’s phone rang with that ringtone.
No … we aren’t making this up.
So, ASCAP took Verizon and AT&T to court over this, and the first case has now gone to court and been settled in favor of Verizon. The AT&T case is still pending, but with the precedent set by the Verizon case, it is doubtful that ASCAP will have any more success.
Cell phone carriers already pay 24 cents for every ringtone downloaded from them to a phone as part of a “mechanical licensing fee”, but what ASCAP was trying to say was that every time your phone rang, that constituted a public performance as other people could hear it. The court ruling on the case (PDF link) sites subsection 110(4) of Title 17 copyright act that pretty much should have told ASCAP this was going nowhere:
[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. . . .
In short, if a person plays a song for a friend, rolls down their car windows while blasting music or allows their cell phone to ring in the presence of others, this constitutes an allowable “performance” because the person is not expecting any commercial gain from it.
Basically ASCAP thought it had spotted a way to make even more money “for the artists”, and instead what it did was eat up valuable time in a court of law. Pretty much any one with two brain cells could see this case was idiotic, and luckily so did the court. I have exactly one ringtone on my phone that plays when my best friend calls me, and I can promise you no one has ever walked over to me, handed me money and thanked me for the public performance of said ringtone.
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October 17th, 2009
Even if it ruled in favor of ASCAP, the enforcement of the “performance fee” would impossible to track and collect.
How would they know what ringtone is actually in use and when it will play? Is their some remote technology that the public is not aware of? What is it?
People can make their own ringtones from their own music collection for nothing.