The American Society of Composers, Authors, and Publishers recently sued Verizon Wireless, alleging that Verizon was both “engag[ing] in public performances of musical works when it downloads ringtones to customers” and “secondarily liable for public performances of musical works when customers play ringtones on their telephones.” Opinion, p. 7. ASCAP was already receiving 24¢ per download under the copyright owner’s mechanical rights, see 17 U.S.C. 106(1), (3), but it sought additional royalties (for a total of 48¢) under this theory of public performance, see 17 U.S.C. 106(4). United States District Judge Denise Cote summarily rejected the claim, holding that “[t]he customers are not liable for copyright infringement, and neither is Verizon.” Opinion, p. 34.

The case centered around the right of a copyright owner “to perform the copyrighted work publicly.” 17 U.S.C. § 106(4). To “perform” is “to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.” 17 U.S.C. § 101. And to perform a work “publicly” is

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times. Id.

Finally, to “transmit” is “to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent.” The Copyright Act also includes exemptions for certain types of public performances, however, including:

performance of a nondramatic literary or musical work otherwise than in a transmission to the public, without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers, if . . . there is no direct or indirect admission charge. 17 U.S.C. § 110(4)(A).

First, the court found that the transmission of a ringtone from Verizon to a purchasing customer does not constitute a public performance “[b]ecause only one subscriber is capable of receiving this transmission or performance,” and thus, “the transmission is not made to the public and is not covered by the Transmission Clause.” Opinion, p. 16. Additionally, the transmission of a music data file is not a performance because it was not “transmitted in a manner designed for contemporaneous perception.” Id. at 19. Second, the court found that a ringtone playing to signal an incoming call falls under the exemption in § 110(4)(A). Id. at 22. When a ringtone plays, even in a public place at a volume allowing many people to hear it, “Verizon customers are not playing the ringtones for any ‘commercial advantage;’ they do not get paid any fee or compensation for these performances; and they do not charge admission.” ASCAP presented several flimsy arguments against this logical conclusion, including that since Verizon controls the signal of the incoming call which prompts the ringtone to play, it engages in a public performance, Opinion, p. 28, but the judge rejected each of these. Thus neither Verizon nor the customer are liable for copyright infringement.

ASCAP’s attempts to “double dip” under this theory have been much-ridiculed. The Electronic Frontier Foundation reports, “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.” Wired laughed that the “argument meant that millions of mobile phone users were copyright scofflaws anytime anyone called them.”

Although this ruling was a decided victory for consumers and cell phone carriers, I’m sure we have not seen the last of the ASCAP and other recording industry groups. As technology continues to adapt and develop, lawsuits like this one will continue to pop up.

— Rachel Perkins

Related Articles:

Wired: Cellphone Ringtones are Not Concerts

Electronic Frontier Foundation: Court Rules that Phones Ringing in Public Don’t Infringe Copyright

ABA Journal: No Royalties for Ringtones, Judge Says

New York Law Journal: No Added Royalties for Use of Ringtones in Public Places, Federal Judge Rules

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