June 19, 2009 | By Fred von Lohmann

ASCAP Wants To Be Paid When Your Phone Rings

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.


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