You got yourself a brand new cell phone. You then go do the honest thing and pay that huge amount of money for a ring tone and put it on your cell phone and set it to be your ring tone. Apparently, you now have to hope that your phone doesn’t ring or else you are allegedly infringing copyright unless you pay a performance tax – at least that’s what ASCAP is hoping for.
For those who believe that copyright laws make pirates out of us all, they may have some fresh ammunition over this latest revelation. The EFF has written about this. In a court brief between ASCAP and AT&T, ASCAP argues that even if you have legally paid for your cell phone ring tone, you could still be a copyright infringer because you have not paid a performance tax. As we’ve witnessed already, one woman faced an $80,000 fine for infringing copyright.
So, should someone be liable for a 5 figure amount every time their cellphone goes off? The EFF doesn’t think so:
Fortunately, ASCAP is wrong. Even if the incidental mobile phone playback of a short snippet in a public place were viewed as a “public performance” (something no court has ever held, and that would also put you in jeopardy for playing your car radio with the window down), the Copyright Act has a specific exception, 17 U.S.C. 110(4), that covers performances made “without any purpose of direct or indirect commercial advantage.” That should take care of ringtones going off in the restaurant.
The EFF also comments on how this could be considered fair use (how often does a full three and a half minute song get played before it is answered anyway?)
This also comes in to question how many millions of Americans this could criminalize. In this day and age, it’s so frequently the case that people without cell-phones end up being in the minority. Is it really all that enforceable to be monitoring every street corner, every bus stop, every elevator, every subway and every public space to listen for ring tones all day long?
Additionally, the EFF likens this to having the car stereo on with the windows rolled down. There’s something amiss when arguing that all cell phone users now being asked to fork over a performance tax just because they have a ring tone.
ASCAP is the American Society of Composers Authors and Publishers. The organization is responsible for collecting royalties on “performances”. Wikipedia entry.
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Playing songs via ringtone, radio blaring in your car or house, whistling a tune… Those are all means by which to pass amongst pubilc, the knowledge of the works musicians create. It’s advertising really… How many times have you been like, ‘I really like that song, I ought to get it so I can enjoy it whenever I’d like.’ thats because radio stations provide artists an outlet to the community, to hear the music and get the artists name and music out in the world… The same with ringtones… You heard the song and said, ‘I want to get that song.’ so you paid for it like you do a cd at the store… Paying for the work of art created by the mucisian, and then become an opportunity of advertisement for that artist and their work… Because when anyone else hears your ringtone, your radio at home or in the car, you whistling or singing kareoke… If they like what they hear then they’ll buy the music. Would you charge someone a fee to come to your house for a party… And actually claim the proceeds are for the music played? No, because it’s not a concert! You might charge for food that you yourself had to pay for, or for the benefit of decorations for creating atmosphere… But no one plays music out of their car and tries to steal the music, make a profit, or claim the work of art as their own. If musicians aren’t making enough money, maybe it’s because they haven’t gotten their name out in the world enough through radio plays or concerts… Maybe no one really likes the music the artist created and their income only trickles. Or because there are so many artists fighting to be heard and become the next “big thing”. Maybe the internet needs to be better managed, or taken care of if you will. To make pirating obsolete, and Actually Do what the Warning Claims It Will Do if someone copies the music or movie without the proper purchase or approval of whoever it states, in the warning. Movies not meant for public viewing, and music not meant for public playing? What about the community events that bring children together for movie nights… Venues for adults to meet new people or just do something constructive together like kareokeing… There needs to be more of a definative answer really. All of this gray area is creating a problem. Why can’t people just come to a conclusion and accept right or wrong, period.
Industry wouldn’t have a far more difficult time manipulating politicians if we had campaign finance reform…which we all know will never happen.
The Google-owned stooges at EFF are wromg, that exception was meant only for libraries. Commercial advantage occurs when someone sells a ringtone.
“… that exception was meant only for libraries.”
No, the exception is for any public location. As well, phones are not allowed to go off in any library.
———-
…
(4)
performance of a nondramatic literary or musical work otherwise than in a transmission to the public, without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers, if–
(A)
there is no direct or indirect admission charge; or
…
———-
“Commercial advantage occurs when someone sells a ringtone.”
This article is about ringtones going off in public locations, imbecile.
ASCAP = ASSHAT
Hey RIAA, I just whistled 5 notes of a tune, come sue me.
I haven’t paid for music or movies in 10 years and never will again.
Smart guys. Piss off the single largest network provider in the US. So much for sending infringement letters, and any shot at network cooperation in throttling file sharers. THANK YOU ASCAP!
Ringtones are fucking annoying. Especially all those teenagers who listen to their latest charts music in public transportation! Put a tax on all that, else I’m going to punch a teenager soon.
They really need to retake their economics or business courses. People would usually pick up the call in less than 5 seconds.
Just further proof of the disconnect between the industry and society. The demands are illogical, over the top money grabs from an industry with no morality. The sad thing is that politicians often listen and give in to the demands out of their own greedy ambitions.
typical RIAA THUGS, when will legalise all filesharing
COME ON!!!! ring tones are only 30 seconds at the most.
i know radio stations may have to play performance fees but that is for the entire song not for the previews that are randomly played in their different promotions like commercial breaks.
Wouldn’t that same clause have technically freed Jammie from having to pay?