US Music Trade Association Wants More Money from Ringtone Sales

The USA based music royalties organisation, the American Society of Composers, Authors, and Publishers (ASCAP) is trying to argue that every time a phone rings in a public location, then a "performance" has occurred.

Therefore, ASCAP argues, phone carriers must pay additional royalties or face legal liability for contributing to what they claim is cell phone users' copyright infringement.

The USA lobby group, the Electronic Frontier Foundation (EFF) has now urged a federal court to reject the claim.

In an amicus brief filed Wednesday, EFF points out that copyright law does not reach public performances "without any purpose of direct or indirect commercial advantage" -- clearly the case with cell phone ringtones. If phone users are not infringing copyright law, then mobile phone service providers are not contributing to any infringement.

"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 has responded by saying that it does not plan to charge mobile phone users, just mobile phone service providers. But if ASCAP prevails, consumers could find themselves targeted by other copyright owners for "public performances." Worse, these wrongheaded legal claims cast a shadow over innovators who are building gadgets that help consumers get the most from their copyright privileges.

"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," said von Lohmann. "Otherwise it would be illegal to sell all kinds of technologies that help us enjoy our fair use, first sale, and other copyright privileges."

The Center for Democracy and Technology and Public Knowledge also joined the EFF brief.