ASCAP is continuing to pursue a lawsuit against AT&T for music-based ringtones; it’s a story that’s made its way across the Web by now, with Ars Technica (http://arstechnica.com/media/news/2009/06/ringing-up-cash-ascap-suing-att-for-ringtone-performance.ars) being one of the larger outlets to pick the story up. It’s an intriguing legal argument: a ringtone that is from a song can be played in public, and should therefore be treated as any other public performance of a song (e.g. playing a radio or a CD in a cafe) which requires a royalty payment to ASCAP, an organization that represents artists and music publishers.
What’s notable about this case is that AT&T already pays royalties for the right to distribute a portion of these songs in digital form, but unlike other wireless carriers, AT&T has refused to pay royalties for performance rights. And as Fred von Lohmann points out on the EFF’s Deeplink Blog, they have had good reason to refuse. Consider the following scenarios:
- A song plays on a cell phone (as part of a ringtone) while in a store
- A song plays on a car radio, with the car stopped at a light and with its windows down
- A song plays through a laptop’s speakers, its owner searching for earphones in his/her laptop bag
- A song plays through an MP3 dock in a house, with the windows open so that a passerby can hear the song
The “public performance” of each song is incidental and not intended to be infringing. In each scenario, there is no assumption of a public performance:
- A cell phone user may put their phone on silent/vibrate whenever they are in “public”
- A driver might turn their radio off while they have the windows down
- A laptop user might keep their sound muted until they connect their earphones
- A person might not open their windows while playing music inside
The most recent legal brief filed by ASCAP claims that ringtones are real-time transmissions which are fully controlled by the wireless carrier, and that the mere capability of a ringtone to be transmitted to the public constitutes a public performance. And, to make matters worse, the carrier is “jointly and severally liable with its customers.” It’s a slippery legal argument, and from assorted legal commentary, not going to make it past any judge.
Let’s hope we don’t all find ourselves on the receiving end of a lawsuit because someone didn’t pay performance royalties on our ringtones.
