ASCAP Now Claiming That Your Mobile Phone Ringing Is A Public Performance
Mon, Jun 22nd 2009 8:23am
" by Mike Masnick
Ah, those collection societies just never learn, do they? We've discussed in the past how ASCAP once threatened the Girl Scouts for singing songs around the campfire, but in the past few years it's been ASCAP's counterpart in the UK that's been in the news the most for things like threatening small business owners after calling them on the phone and saying they hear music in the background or threatening a stable owner for playing the radio to her horses. I guess ASCAP was feeling a bit left out. Its latest move is to claim that legally purchased ringtones on mobiles phones, playing in public places, represents a public performance for which it is owed royalties. Songwriters and music publishers already are paid royalties on ringtone purchases, but ASCAP is claiming that buying the file is entirely different than "the performance" (i.e., the phone ringing).
In the EFF's response to ASCAP, it notes that copyright law makes a specific exemption for performances made "without any purpose of direct or indirect commercial advantage." ASCAP counters that even if that's true, only the owners of mobile phones can make that assertion, but the mobile operators (AT&T, Verizon, Sprint, etc.) still need to pay up for performance rights because they are commercial entities, even if the use of the phones is not. The EFF goes on to point out how this reasoning does not mesh with the law, the case law, or the intended purpose of copyright.
On top of this, even if, in some bizarre, twisted interpretation of the law, a ringtone playing on a phone was a public performance, how would it be the mobile operators' liability to pay? That would be like saying that Apple should pay ASCAP royalties because songs it sells on iTunes could potentially be played through speakers publicly somewhere. Perhaps I shouldn't be giving ASCAP ideas...
However, this is not a surprise. It's simply the way industry groups (even those representing the songwriters, rather than the labels) have always worked. It's always about "extending" rights. That's why copyright was broken down eventually into different types of rights -- including distribution rights and performance rights, because the "old" rights didn't fit the new technologies. It's a particularly obnoxious trick to claim that, because a single file can be used in multiple ways (for both distribution and performance), it is now subject to both types of royalties. The only reason those separate royalties were broken out in the first place was due to angry demands from these sorts of groups about how the old "rights" didn't cover new media versions of content. To then double back and claim multiple coverage is beyond obnoxious. "