June 23 2009

ASCAP Says Ringtones Are A “Performance”

ascapI must request that no one calls my cell phone any more.

Hear me out folks! When certain people call my phone, this causes my phone to ring (I know, what a revelation), and since I have attached a ringtone to their number, that means that music plays to let me know who it is. Folks, every time you call me, did you know we’re holding a performance? It’s true! People jump up on tables and start dancing… spotlights suddenly appear as if from nowhere and shine down on the make-shift dance floor… it’s sort of like High School Musical, or, at least what I imagine High School Musical is like since I have never watched even a second of any of those movies, but you get the idea.

This is what the American Society of Composers, Authors, and Publishers (ASCAP) would have you believe.  According to the Electronic Frontier Foundation (EFF), ASCAP filed a brief (PDF link) against AT&T saying that even though consumers have paid a download royalty, the musicians are owed a second royalty for public performance when the phone ring in public places such as a restaurant.  They are going after AT&T because they make the phones be able to play the ringtones.

As the EFF points out, this is pretty much doomed to failure.  There is a specific section of the Copyright Act (17 U.S.C. 110(4)) that says performance without any fee or compensation is ok.

(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

(B) the proceeds, after deducting the reasonable costs of producing the performance, are used exclusively for educational, religious, or charitable purposes and not for private financial gain, except where the copyright owner has served notice of objection to the performance under the following conditions:

(i) the notice shall be in writing and signed by the copyright owner or such owner’s duly authorized agent; and

(ii) the notice shall be served on the person responsible for the performance at least seven days before the date of the performance, and shall state the reasons for the objection; and

(iii) the notice shall comply, in form, content, and manner of service, with requirements that the Register of Copyrights shall prescribe by regulation;

So, okay, the consumer is protected because they have legally purchased the ringtones, so ASCAP turns to AT&T  because they are selling the ringtones for a profit, so they are ‘charging an admission’ for the ringtone being played.  So basically they are going after the company that sells you the equipment to enjoy this loophole in the copyright law.  The problem with this portion is that it was ruled on years ago in the infamous Sony Betamax ruling that ruled that companies were not liable for how their technologies were used. If they were to be held responsible for those uses, they would have to ask media companies for permission before building new tech, and this would stifle creativity.

Now that it is clear that ASCAP has no legal leg to stand on… does the greed of the music industry know no bounds?  Is there any possible way that they won’t continue to try to bleed money out of the consumer?  If by some miracle they win this case, you know the royalty fee will be passed down to the consumer, so, yes, this does impact you.  Yet again it is just another example of how the music industry treats all of its customers as criminals from day one, and you basically owe them money for even thinking about music.

This story is a couple of days old now, and I actually was going to give it a pass, but as I continued to think about it, the angrier I got.  Just who does ASCAP think they are?  I know of a retailer friend of mine who got visited by ASCAP at least twice over his personal radio he kept behind his counter.  He played music for his own entertainment as he would sort freight, but ASCAP said he owed them a yearly licensing fee because he played the radio at a certain decibel level that qualified it as a public performance.  He offered to turn it down, but he was informed it was too late and he owed them the fees.  Last I heard he had never paid it and continued to refuse to pay them, but they kept trying to get him for it.

Decibel levels?  Really?  Well, here’s a money spinner idea for ASCAP!  Go park an agent outside any given high school when it lets out for the day, and ticket everyone with a car stereo system over a certain level because they are obviously doing a public performance!  Heck, from my days in high school they would have made a fortune!

The music industry continues to wonders why they continue to have such a lousy relationship with consumers.  Well, I’ve got a couple of ideas of how that might have happened, could it possibly be the fact you come after us for every conceivable cent?  Just a thought.

Hopefully this will get tossed quickly, but you never know.

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