American Society of Composers, Authors and Publishers (ASCAP) had sued Verizon Wireless demanding that it be compensated each time a person’s ringtone played in public, calling it a “public performance.”
Back in June it was first mentioned here how the American Society of Composers, Authors and Publishers (ASCAP) had begun suing mobile telephone companies with the argument that the playback of ringtones on a customer’s phone requires a public performance license, and that without one they are committing copyright infringement.
“When a ringtone rings in ‘public,’ it is undeniably a “public performance” as those terms are defined in the Copyright Act,” reads a brief submitted to the court.
Even further startling is that it argued that they are a public performance even if it’s switched to vibrate, turned off, or located at home. It need only be “capable” of being performed in public.
“Whether the ringtone is set to play, and indeed whether anyone hears it, is of no moment,” it adds.
Never mind the fact that ASCAP is already compensated each time mobile telephone company sells a ringtone to its customers. It essentially wants to double-dip from the same pool of money.
NY District Judge Judge Denise Cote has now ruled on the case, determining that a ringtone is exempted from the “public performance” dictates of the Copyright Act.
She notes that it exempts “those performances of a musical work that occur within the ‘normal circle of a family and its social acquaintances’ this performance would not count as a public performance.”
Judge Cote adds that the fact that there is no obvious expectation of profit to be made from the phone’s ringtone being heard in public also clearly it exempts it.
From the Copyright Act:
[any] 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 there is no direct or indirect admission charge…
What’s sad is that ASCAP has apparently become so desperate that it’s doing all it can to find new sources of revenue.
Let’s just be thankful Judge Cote recognized the suit for what it is.