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Lawyers claim ringtones are public performance

EFF hits out at 'outlandish copyright claims'

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Internet watchdog Electronic Frontier Foundation has hit out at a US music royalties collector, accusing it of making “outlandish copyright claims” about mobile phone ringtones.

The American Society of Composer, Authors and Publishers (ASCAP) filed a lawsuit against telecoms giant AT&T, in which it told a federal court that ringtones fell under the public perfomance Copyright Act.

ASCAP collects royalties and licences on behalf of 350,000 members in the US.

In effect, the organisation is gunning for additional payments from mobile firms, and if they don’t cough up the royalties ASCAP could claim copyright infringement against mobile users, according to the EFF.

The lobby group responded by filing an amicus brief* for the case earlier this week in the US District Court for the Southern District of New York.

The brief, which was also joined by the Center for Democracy and Technology and Public Knowledge, urged the federal court to reject what the EFF described as “bogus copyright claims… that could raise costs for consumers, jeopardise consumer rights, and curtail new technological innovation”.

Copyright law exempts performance "without any purpose of direct or indirect commercial advantage”, which should include the use of mobile ringtones in a public place, asserted the EFF. "This is an outlandish argument from ASCAP," said EFF senior intellectual property attorney Fred von Lohmann.

"Are the millions of people who have bought ringtones breaking the law if they forget to silence their phones in a restaurant? Under this reasoning from ASCAP, it would be a copyright violation for you to play your car radio with the window down!"

ASCAP insisted it wouldn’t pursue individuals who it perceived to be breaking copyright law by airing music via their ringtones in public, but said it would bring royalty claims against phone service providers in the US.

"Because it is legal for consumers to play music in public, it's also legal for my mobile phone carrier to sell me a ringtone and a phone to do it. Otherwise it would be illegal to sell all kinds of technologies that help us enjoy our fair use, first sale, and other copyright privileges," argued von Lohmann.

But ASCAP, which filed a document against AT&T’s request for a summary judgment in the case early last month, disagrees with that stance, claiming that performances can still violate copyright even if no commercial gain is apparent, such as with ringtones.

The case continues. ®

*A document submitted to a court by someone who is not directly related to the case under consideration.

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