Phone ringtones a "public performance"? EFF, AT&T say no; Ars Technica, 7/2/09

Matthew Lasar via Ars Technica; Phone ringtones a "public performance"? EFF, AT&T say no: ASCAP argues that ringtones are "public performances" of music under the Copyright Act and need to have a license. EFF, AT&T, Verizon and others tell a federal court that the idea is ridiculous; after all, you don't need a public performance license to drive around town in a convertible with the radio on:

"Needless to say, EFF et al's amicus filing calls ASCAP's arguments specious and dangerous, potentially making every consumer a copyright violator whenever they receive a mobile call on the street. Section 110(4) of the Copyright Act, EFF contends, makes it clear that a consumer does not engage in a public performance when, for example, she:

• Rolls down the window of her car while the stereo is playing;
• Sings "Happy Birthday" at a private gathering in a public park;
• Hums a tune while walking on a public sidewalk; or
• Listens to music on the radio while sitting on the beach.

"ASCAP has attempted to mollify consumers with press statements that its members would never pursue individuals for these everyday activities," EFF concludes. "But ASCAP's forbearance is hardly an adequate substitute for the absolute statutory privilege enjoyed by consumers pursuant to Section 110(4)." And even if cell phone users are never dinged for "public ringing," they'll surely pay higher prices for ringtones if ASCAP wins this case.

Similarly, CTIA takes issue with the public performance argument. "The playing of a ringtone does not involve a transmission," the trade group says, "is not at all akin to a public concert or dance, and is no more a public performance than the commonplace act of playing a CD in a car with the windows (or top) down."

So now it's up to the "rate court," aka the Southern District of New York, to sift through all these takes on "performance" and come up with a wireless fee policy for ringtones. In the meantime, savor the moment—one of the few when you'll find AT&T and these public interest groups on the same legal page."

http://arstechnica.com/tech-policy/news/2009/07/telcos-and-reform-groups-slam-ascap-on-ringtone-grab.ars