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.

Related arti­cles by Zemanta

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