Should ringtones count as a “public performance”?

Please note that this post is from 2009. Evaluate with care and in light of later events.

Should someone — either you or your carrier — have to pay additionally for a “public performance” of a song when your phone rings?

In the ringtone case [part of U.S. v. ASCAP], ASCAP’s argument is the mirror image of the NMPA’s on interactive streams: It contends that ringtones involve a public performance when they’re first delivered to a cellphone, and again when the phone rings. My favorite part of ASCAP’s latest brief is when it explains what makes a ringtone a public performance: “It need only be ‘capable’ of being performed to the public; whether the ringtone is set to play, and indeed whether anyone hears it, is of no moment” (emphasis added).

Some folks may pick ringtones precisely because the public will hear and admire them, just as some people carry boom boxes in public or sing as they shop. But as the advocacy groups note, copyright law provides a specific exemption from infringement claims for performances that aren’t transmissions to the public, seek no commercial advantage and collect no compensation. Does that ring a bell?

via A big week for copyrights and piracy | Technology | Los Angeles Times.

The Electronic Frontier Foundation adds its opinion on the matter, which seems right on to me:

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.

via ASCAP Wants To Be Paid When Your Phone Rings.

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• Lawyers claim ringtones are public performance (theregister.co.uk)
• Ringing up cash: ASCAP suing AT&T for ringtone “performance” (arstechnica.com)