Industry Groups Ask Court to Reject ASCAP Claims on Ringtone Royalties
CTIA, USTelecom, CEA and other industry groups warned in court briefs that legal challenges ASCAP has brought against Verizon Wireless and AT&T could have a chilling effect on the use of musical ringtones. ASCAP asserts in the cases that whenever a musical ringtone goes off in public, it is in effect a performance and violation of copyright law even though the wireless company has already paid a licensing fee.
Sign up for a free preview to unlock the rest of this article
Communications Daily is required reading for senior executives at top telecom corporations, law firms, lobbying organizations, associations and government agencies (including the FCC). Join them today!
ASCAP members, as copyright owners, “already license each ringtone that a consumer purchases and receive a 24 cent royalty for each purchased ringtone,” the industry group filing said: “The additional compensation that ASCAP seeks is inequitable, inconsistent with prior interpretations of the Copyright Act and will create significant disincentives for carriers to foster the widespread use of ringtones.” The Digital Media Association and the Internet Commerce Coalition also signed on to the brief.
The industry brief questioned the premise that a mobile phone ringing in public could constitute a public performance. “In struggling to overcome the language of the Copyright Act and this Court’s prior decision, ASCAP invents a new type of public performance not found in the law or any decided cases,” the brief said. “As a matter of law, a public performance of a musical work occurs when either a live performance or a sound recording is ‘performed’ to the public.” The term performance should not be loosely applied, the brief said. “In order to be directly liable the alleged infringer must be ‘performing’ the work, meaning that the infringer itself must ‘recite, render, play, dance or act’ the work directly or through a ‘device or process.'”
ASCAP members are already fairly compensated for their work through the payment for the ringtone, the brief said. “Not only would any additional payment for the public performance right amount to an inequitable ‘double dip’ for a license to have ringtones play back, but it would also require this court to artificially divide what is a single transaction -- the acquisition of a ringtone by a download in order to have it ring to signal an incoming call -- into two distinct components.”
An ASCAP spokeswoman did not respond to a request for comment on the filing.
The Electronic Freedom Foundation also opposes the ASCAP demands. “ASCAP (the same folks who went after Girl Scouts for singing around a campfire) appears to believe that every time your musical ringtone rings in public, you're violating copyright law by ‘publicly performing’ it without a license,” said foundation lawyer Fred von Lohmann in an article posted on the group’s Web site. “At least that’s the import of a brief filed in ASCAP’s court battle with mobile phone giant AT&T. This will doubtless come as a shock to the millions of Americans who have legitimately purchased musical ringtones, contributing millions to the music industry’s bottom line. Are we each liable for statutory damages (say, $80,000) if we forget to silence our phones in a restaurant?”
“In 2007, the court that is hearing the current ringtone cases agreed with DiMA when it rebuffed ASCAP’s demand for public performance royalties associated with digital downloads of sound recordings,” said DiMA Executive Director Jonathan Potter. “The court concluded then that selling a download is like selling a CD -- neither involves a public performance and so neither requires payment of public performance royalties. Because ringtones are also enjoyed privately by consumers who have already acquired them, we expect the court will rule the same way in these cases.”