October 15, 2009 | By Fred von Lohmann

Court Rules That Phones Ringing in Public Don't Infringe Copyright

As we reported in June, ASCAP believes that when your cell phone's musical ringtone sounds in a public place, you're infringing copyright. A federal court yesterday firmly rejected that argument, ruling that "when a ringtone plays on a cellular telephone, even when that occurs in public, the user is exempt from copyright liability, and [the cellular carrier] is not liable either secondarily or directly." This is exactly the outcome urged by EFF, Public Knowledge, and the Center for Democracy & Technology in an amicus brief filed in the case.

The ruling is an important victory for consumers, making it clear that playing music in public, when done without any commercial purpose, does not infringe copyright. That's thanks to Section 110(4) of the Copyright Act, which exempts public performances undertaken "without any purpose of direct or indirect commercial advantage." In the words of the court, "customers do not play ringtones with any expectation of profit." This ruling should also protect consumers who roll down their car windows with the radio on, who take a radio to the beach, or who sing "Happy Birthday" to their children in a public park (remember, ASCAP once demanded royalties from Girl Scouts for singing around the camp fire!).

The court also found that cell phone carriers do not publicly perform when they download a ringtone to a phone (the carriers already pay 24 cents in royalties for the reproduction of the ringtone, but ASCAP was hoping to double dip by charging a public performance royalty on top of that). This is another important ruling, expanding on a 2007 ruling that also concluded that a download is not a public performance. The court reasoned that because the download was transmitted to just one person, it was not a "public" performance.


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