Judge rules against ASCAP over ringtone royalties

A federal judge has ruled that ringtones played aloud in public do not constitute a true performance, rejecting copyright violation charges lodged by performance rights organization the American Society of Composers, Authors and Publishers. ASCAP filed suit against AT&T in June, alleging that each time a musical ringtone goes off in public, the mobile phone melody constitutes a performance and violates copyright law--in a ruling Wednesday, U.S. District Judge Denise Cote declared that music played in public without a specific commercial purpose does not infringe copyright, adding that mobile operators retain no control over when ringtones are played by subscribers and earn no additional revenue during playback.

According to Cote, operators are only responsible for the transmission of the ringtone to the mobile device, a service that doesn't count as a performance in and of itself. "Even if the customer could listen to the download as it was being received, and contemporaneously perceive it as the musical work, that would not constitute a public performance," Cote writes.

Non-profit advocacy and legal organization the Electronic Frontier Foundation applauded Cote's decision. "The ruling is an important victory for consumers, making it clear that playing music in public, when done without any commercial purpose, does not infringe copyright," writes EFF senior staff attorney Fred von Lohmann on the EFF blog. "That's thanks to Section 110(4) of the Copyright Act, which exempts public performances undertaken ‘without any purpose of direct or indirect commercial advantage.' In the words of the court, ‘customers do not play ringtones with any expectation of profit.' 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."

For more on the ringtone ruling:
- read this ArsTechnica article

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