[Infowarrior] - ASCAP Wants To Be Paid When Your Phone Rings

[Richard Forno]

ASCAP Wants To Be Paid When Your Phone Rings
Legal Analysis by Fred von Lohmann

http://www.eff.org/deeplinks/2009/06/ascap-wants-be-paid-

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. At least that's the import of a  
brief [2.5mb PDF] it 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?

ASCAP's outlandish claim is part of its battle with major mobile  
carriers (including Verizon and AT&T) over whether ASCAP is owed any  
money for "public performances" of the musical ringtones sold by the  
carriers. The carriers point out that the owners of the musical  
compositions (i.e., songwriters and music publishers) are already paid  
for each ringtone download, but ASCAP claims that it's owed another  
royalty for the "public performances" (i.e., ringing in a restaurant)  
of those same ringtones.

Fortunately, ASCAP is wrong. 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.

Confronted with Section 110(4), ASCAP makes an even more dangerous and  
wrongheaded argument -- that the carrier cannot "stand in the shoes of  
its customer" when asserting a copyright defense like Section 110(4).  
In other words, because AT&T is in the ringtone business for the  
money, it's on the hook even if the customer isn't.

To appreciate how anti-consumer this argument is, consider what it  
would mean in practice. Congress has decided that many activities  
should be beyond the reach of copyright law, including not only the  
performances covered by Section 110(4), but also fair use and first  
sale, among other things. It's thanks to these exceptions and  
limitations that libraries can lend books, you can use a TiVo, and  
Apple can sell iPods to help you get the most from your CD collection.  
ASCAP is arguing, however, that just because you can't be held liable  
for copyright infringement for these things, a copyright owner could  
still sue any technology company that helps you enjoy your rights  
under copyright law.

Fortunately for consumers, ASCAP's theory is foreclosed by the Sony  
Betamax ruling, where the Supreme Court held that because it's a fair  
use for you to time-shift TV, it's also perfectly legal for Sony to  
sell you a VCR to do it. Sony did not have to run a second fair use  
gauntlet for its commercial VCR-selling business.

In short, if there's no infringement liability for the customer, there  
can be no secondary liability for the carriers. (ASCAP also has a  
theory that the carriers are direct infringers because they set up the  
system that causes phones to ring in public, but that theory is pretty  
handily wiped out by the recent Cablevision ruling, where the court  
found that setting up a "remote DVR" service doesn't make you a direct  
infringer when your customers use it.)

Or, put another way, if it's noninfringing for you, it's also  
noninfringing for a technology company to provide you with the means  
to do it.