Court Rebuffs ASCAP’s Ringtone Grab
Thursday, October 15th, 2009A federal court ruled yesterday that mobile phone carriers do not need to pay copyright performance royalties for the ringtones their customers choose to legally download and use. The ruling is a win for consumers and precisely the result that CDT, EFF, and Public Knowledge urged in an amicus brief filed earlier this year. Contrary to the performance-rights organization ASCAP’s strained assertions, the court ruled, “When a ringtone plays on a cellular telephone, even when that occurs in public, the user is exempt from copyright liability, and [carriers are] not liable.” In other words, neither you nor your cellular phone company owe ASCAP a few pennies every time your phone bursts into Raffi’s Bananaphone.
While ASCAP had made public statements that it would never go after individuals for copyright infringement, its demand for royalties from Verizon and AT&T implied that each customer was infringing copyright every time his or her phone rang, even using a ringtone that the user legally purchased. The court appropriately found that such uses would be non-infringing under section 110(4) of the Copyright Act, which exempts performances undertaken “without any purpose of direct or indirect commercial advantage.” This seems like common sense, and Fred von Lohmann at EFF has neatly summed up the implications with some apt comparisons: “This ruling should also protect consumers who roll down their car windows with the radio on, who take a radio to the beach, or who sing ‘Happy Birthday’ to their children in a public park.”
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