Should ringtones count as a "public performance"?

Should some­one — either you or your car­rier — have to pay addi­tion­ally for a “pub­lic per­for­mance” of a song when your phone rings?

In the ring­tone case [part of U.S. v. ASCAP], ASCAP’s argu­ment is the mir­ror image of the NMPA’s on inter­ac­tive streams: It con­tends that ring­tones involve a pub­lic per­for­mance when they’re first deliv­ered to a cell­phone, and again when the phone rings. My favorite part of ASCAP’s lat­est brief is when it explains what makes a ring­tone a pub­lic per­for­mance: “It need only be ‘capa­ble’ of being per­formed to the pub­lic; whether the ring­tone is set to play, and indeed whether any­one hears it, is of no moment” (empha­sis added).

Some folks may pick ring­tones pre­cisely because the pub­lic will hear and admire them, just as some peo­ple carry boom boxes in pub­lic or sing as they shop. But as the advo­cacy groups note, copy­right law pro­vides a spe­cific exemp­tion from infringe­ment claims for per­for­mances that aren’t trans­mis­sions to the pub­lic, seek no com­mer­cial advan­tage and col­lect no com­pen­sa­tion. Does that ring a bell?

via A big week for copy­rights and piracy | Technology | Los Angeles Times.

The Electronic Frontier Foundation adds its opin­ion on the mat­ter, which seems right on to me:

Fortunately for con­sumers, ASCAP’s the­ory is fore­closed by the Sony Betamax rul­ing, where the Supreme Court held that because it’s a fair use for you to time-​​shift TV, it’s also per­fectly legal for Sony to sell you a VCR to do it. Sony did not have to run a sec­ond fair use gaunt­let for its com­mer­cial VCR-​​selling business.

In short, if there’s no infringe­ment lia­bil­ity for the cus­tomer, there can be no sec­ondary lia­bil­ity for the car­ri­ers. (ASCAP also has a the­ory that the car­ri­ers are direct infringers because they set up the sys­tem that causes phones to ring in pub­lic, but that the­ory is pretty hand­ily wiped out by the recent Cablevision rul­ing, where the court found that set­ting up a “remote DVR” ser­vice doesn’t make you a direct infringer when your cus­tomers use it.)

Or, put another way, if it’s non­in­fring­ing for you, it’s also non­in­fring­ing for a tech­nol­ogy com­pany to pro­vide you with the means to do it.

via ASCAP Wants To Be Paid When Your Phone Rings.

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• Lawyers claim ring­tones are pub­lic per­for­mance (thereg​is​ter​.co​.uk)
• Ringing up cash: ASCAP suing AT&T for ring­tone “per­for­mance” (arstech​nica​.com)