No Royalties for Ringtone ‘Performances’

Posted on 15. Oct, 2009 by refe in NEWS

There are two big stories in the news today related to intellectual property and music royalties. The first, which I will save for a separate post, is the passing of the Performance Rights Act by the Senate Judiciary Committee. I’ve written about the PRA before, but there have been some new developments since then and I think it’s worth revisiting.

The second big story is the rejection of one of the most bogus lawsuits of the past year (and that is saying a lot.) Back in June royalty collection society ASCAP sued mobile carrier AT&T for violating their copyrights. ASCAP argued that they should be paid a royalty each time a musical ringtone plays because it constitutes a ‘public performance.’ AT&T pointed out that they already pay a royalty each time a ringtone is downloaded. Yet ASCAP believed that there should be another royalty on top of that to cover instances where these same ringtones might be overheard in a crowded restaurant, or perhaps on the subway.

There would have been huge implications if ASCAP had gotten its way – not just for AT&T and other mobile carriers, but for consumers as well. Essentially what ASCAP is saying here is that anytime anyone place any kind of music – even if it isn’t for commercial or financial gain – they are infringing on the composers’ copyrights. Imagine living in a world where you couldn’t roll down your car windows for fear that someone in the next car might overhear the music you’re playing. That’s exactly the kind of environment ASCAP appears to be trying to create.

Fortunately, the judge overseeing the case soundly rejected the claims, 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.” In other words, you can take your phone off vibrate again.

This case is only one of many in recent months where ASCAP and BMI have attempted to double-dip on royalties. In July, ASCAP started sending collection letters to sites who had embedded YouTube videos that contained music. The problem is, YouTube already pays royalties on video plays even if that video is embedded on another site. And in September, ASCAP and BMI decided that they should be paid royalties for the 30 second previews offered by download sites like iTunes and Amazon.

Yes, it is ASCAP’s job to look out for it’s members, the composers and publishers. But is this really the way to go about it? What do you think?

Original cellphone sketch by makiko.

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