ASCAP Now Claiming That Your Mobile Phone Ringing Is A Public Performance

[David Farber <dave () farber net>]

Begin forwarded message:

From: dewayne () warpspeed com (Dewayne Hendricks)
Date: June 22, 2009 12:14:12 PM EDT
To: Dewayne-Net Technology List <xyzzy () warpspeed com>
Subject: [Dewayne-Net] ASCAP Now Claiming That Your Mobile Phone  
Ringing Is A Public Performance

ASCAP Now Claiming That Your Mobile Phone Ringing Is A Public  
Performance
from the pay-up dept
<http://techdirt.com/articles/20090620/1836345299.shtml>

Ah, those collection societies just never learn, do they? We've  
discussed in the past how ASCAP once threatened the Girl Scouts for  
singing songs around the campfire, but in the past few years it's been  
ASCAP's counterpart in the UK that's been in the news the most for  
things like threatening small business owners after calling them on  
the phone and saying they hear music in the background or threatening  
a stable owner for playing the radio to her horses. I guess ASCAP was  
feeling a bit left out. Its latest move is to claim that legally  
purchased ringtones on mobiles phones, playing in public places,  
represents a public performance for which it is owed royalties.  
Songwriters and music publishers already are paid royalties on  
ringtone purchases, but ASCAP is claiming that buying the file is  
entirely different than "the performance" (i.e., the phone ringing).

In the EFF's response to ASCAP, it notes that copyright law makes a  
specific exemption for performances made "without any purpose of  
direct or indirect commercial advantage." ASCAP counters that even if  
that's true, only the owners of mobile phones can make that assertion,  
but the mobile operators (AT&T, Verizon, Sprint, etc.) still need to  
pay up for performance rights because they are commercial entities,  
even if the use of the phones is not. The EFF goes on to point out how  
this reasoning does not mesh with the law, the case law, or the  
intended purpose of copyright.

On top of this, even if, in some bizarre, twisted interpretation of  
the law, a ringtone playing on a phone was a public performance, how  
would it be the mobile operators' liability to pay? That would be like  
saying that Apple should pay ASCAP royalties because songs it sells on  
iTunes could potentially be played through speakers publicly  
somewhere. Perhaps I shouldn't be giving ASCAP ideas...

[snip]
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