Just a few days ago, we pointed out that ASCAP is arguing in federal court that every time your musical ringtone rings in public, you're violating copyright law by "publicly performing" it without a license. Now ASCAP has fired up its spin control machinery and issued a statement to Billboard, including this talking point, doubtless meant to be reassuring:

To be completely clear, ASCAP’s approach has always been to license these businesses – not to charge listeners/end-users.

This is an archetypal example of copyright doublespeak. What ASCAP should be saying is: "It's not infringing when your ringtone goes off in public." That's because the Copyright Act specifically provides in Section 110(4) that public performances "without any purpose of direct or indirect commercial advantage" are "not infringements of copyright."

Instead, ASCAP's statement essentially amounts to "you're all pirates, but don't fret, we'd never sue you for it, just every company that provides you with services." We've seen similar statements from others in the copyright industries: the RIAA, for example, still has never admitted that ripping a CD you own for use on your own iPod is a noninfringing fair use. Instead, they say "we have no objection to that" or "we'd never sue you for that." Statements like this provide no certainty to consumers, nor to the innovators who are trying to build businesses (whether delivering VCRs, ringtones or iPods) helping consumers enjoy copyrighted works in every conceivable way that does not infringe the limited rights granted to copyright owners.

So, reporters, next time you get this copyright doublespeak from an ASCAP representative, remember to ask the next question: "If I have a musical ringtone, and it rings in a public place, are you saying that I've infringed the copyrights of your members?"

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