Feeds

Judge rebukes copyright enforcer in ringtone case

Wireless carrier win

Secure remote control for conventional and virtual desktops

A federal judge has handed cellular carriers a decisive victory, ruling that they don't have to pay public performance licensing fees for the ringtones they sell to customers.

If upheld, the decision by US District Judge Denise Cote of the Southern District of New York means Verizon Wireless won't have to pay millions of dollars in licensing fees to the American Society of Composers, Authors, and Publishers, better known as ASCAP. The case was closely watched by a raft of groups on both sides of the issue, including composers, wireless carriers and consumer advocates.

ASCAP argued it was entitled to the revenue because the playing of ringtones constituted a public performance akin to a movie or audiovisual work. It reasoned that because Verizon controlled the entire process that allowed a song to be played in public on a cell phone, it directly infringed the works' copyright. The group also claimed Verizon was liable for the infringement of its subscribers.

In a 34-page ruling issued Wednesday (PDF), Cote firmly disagreed. Her basis: While Verizon encourages subscribers to purchase ringtones and provides the technology needed for them to be played in public, its actions didn't rise to an actual performance as described by copyright statutes.

"Verizon does not 'recite, render, play, dance, or act [the ringtone] either directly or by means of any device,' and thus does not 'perform' the music, as that term is defined in the Copyright Act," she wrote. "Nor does Verizon engage in conduct that can be said to cause a ringtone to be played in public. Verizon's only role in the playing of a ringtone is the sending of a signal to alert a customer's telephone to an incoming call."

She went on to reject ASCAP's arguments that Verizon was liable for the infringement of its customers. People who allow ringtones to play on their phone while in cafes or other public places do so "with no expectation of profit" and "only in the presence of the 'normal circle of a family and its social acquaintances,'" she wrote.

Under the Copyright Act, that finding exempted the subscribers from a requirement to obtain a performance license.

Such public performance licenses are only one of six exclusive rights Congress grants to copyright holders. The ruling doesn't apply to rights such as copying the musical work to a computer file or distributing works for sale. Verizon is already saddled with royalty fees of 24 cents for each ringtone download it offers, more than twice what it has to pay when its subscribers obtain the entire song.

The ruling will prevent copyright holders from double dipping and burdening Verizon, and other carriers, with additional royalty payments.

Verizon and other wireless carriers aren't the only potential beneficiaries of the ruling. It's also a victory to average joes, given ASCAP's argument that, by allowing copyrighted music to be played in public settings, they were also on the hook for infringement.

The ruling "very clearly says that consumers do not infringe copyright just by playing music in public," said Fred von Lohman, a senior staff attorney at the Electronic Frontier Foundation, which filed a friend-of-the-court brief in opposition to ASCAP. "That's not only good news if your cell phone rings in a restaurant, that's also good news if your car radio is on with the windows down or you sing happy birthday in a public park." ®

Secure remote control for conventional and virtual desktops

More from The Register

next story
Phones 4u slips into administration after EE cuts ties with Brit mobe retailer
More than 5,500 jobs could be axed if rescue mission fails
JINGS! Microsoft Bing called Scots indyref RIGHT!
Redmond sporran metrics get one in the ten ring
Driving with an Apple Watch could land you with a £100 FINE
Bad news for tech-addicted fanbois behind the wheel
Murdoch to Europe: Inflict MORE PAIN on Google, please
'Platform for piracy' must be punished, or it'll kill us in FIVE YEARS
Bono: Apple will sort out monetising music where the labels failed
Remastered so hard it would be difficult or impossible to master it again
Phones 4u website DIES as wounded mobe retailer struggles to stay above water
Founder blames 'ruthless network partners' for implosion
Sony says year's losses will be FOUR TIMES DEEPER than thought
Losses of more than $2 BILLION loom over troubled Japanese corp
Radio hams can encrypt, in emergencies, says Ofcom
Consultation promises new spectrum and hints at relaxed licence conditions
prev story

Whitepapers

Secure remote control for conventional and virtual desktops
Balancing user privacy and privileged access, in accordance with compliance frameworks and legislation. Evaluating any potential remote control choice.
WIN a very cool portable ZX Spectrum
Win a one-off portable Spectrum built by legendary hardware hacker Ben Heck
Intelligent flash storage arrays
Tegile Intelligent Storage Arrays with IntelliFlash helps IT boost storage utilization and effciency while delivering unmatched storage savings and performance.
High Performance for All
While HPC is not new, it has traditionally been seen as a specialist area – is it now geared up to meet more mainstream requirements?
Beginner's guide to SSL certificates
De-mystify the technology involved and give you the information you need to make the best decision when considering your online security options.