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Maggie Shiels

Music industry v Technology

  • Maggie Shiels
  • 6 Jul 09, 10:15 GMT

Ringtones - sometimes they are funny, sometimes entertaining, sometimes rude and, yes, sometimes they are just plain annoying.

Boy on mobile phoneRingtones are a multi-billion dollar industry and everyone from Madonna to Charlie Parker and from Wagner to Wang Chung is available for download.

Well now a court in New York is being asked to decide if ringtones can be classed as a public performance and if so the American Society of Composers, Authors and Publishers, aka ASCAP, wants a piece of the action.

ASCAP has filed a suit in a Manhattan court against the country's two largest wireless carriers AT&T and Verizon. The organisation is a non-profit that collects fees for public performances of music. It then pays royalties to its 350,000 songwriting and publishing members.

Back in the 1990's ASCAP garnered unflattering headlines for suing the Girl Scouts over publicly performing camp songs like "Happy Birthday" and "Puff the Magic Dragon."

Now it is claiming that a ringtone that is played on a cellphone breaches copyright law.

In its brief ASCAP explains when a ringtone becomes a public performance:

"It need only be 'capable' of being performed to the public; whether the ringtone is set to play, and indeed whether anyone hears it, is of no moment."

The brief later states that:

"Whether the device is on or off, the volume is turned down, or the phone is placed on vibrate, AT&T has caused a public performance."

ASCAP has brought a similar action against Verizon but says it won't go after individuals in this fight.

Operators that sell ringtones already pay royalties to songwriters for use of their material.

So it's the music industry versus technology again over copyright.

Naturally enough there are a few groups who have asked the court to throw the whole thing out on its ear.

The Electronic Frontier Foundation, a digital rights group, says:

"[T]hese wrongheaded legal claims cast a shadow over innovators who are building gadgets that help consumers get the most from their copyright privileges."

Public Knowledge and the Centre for Democracy and Technology argue that copyright law exempts performances that are conducted without a commercial purpose.

ASCAP disagrees.

All three groups have said in their amicus brief to the court that they reject as "bogus copyright claims...that could raise costs for consumers, jeopardise consumer rights, and curtail new technological innovation."

EFF's senior intellectual property attorney Fred von Lohman says:

"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!"

Fines for copyright infringement are steep. Up to $150,000 (£92,600) per violation.

Comments

  • Comment number 1.

    I can't believe that your ringtone could possibly be construed as a public performance! This is the biggest pile of proverbial I have ever heard! When will the copyright owners realise that if you annoy the consumer then that is the quickest way to lose revenue?
    Don't start taking people to court all of a sudden for something that's been going on for years (first 'truetone' was at the end of 2002)! Can I file against the guy on my train who has his iPod turned up so loud that I can hear it? Surely this, too, is a public performance of copyrighted material and ASCAP would want to stop this.
    When does it end?

  • Comment number 2.

    "Fines for copyright infringement are steep. Up to $150,000 (£92,600) per violation."

    I'm against the punishment of consumers and everything, but it would be brilliant to slap the educationally challenged plebs who play tinny music loudly from their tumour boxes on the bus with that fine though!

  • Comment number 3.

    So how long before iPods and walkmans are classed as public performance capable devices?

    What a waste of everybodies time.

  • Comment number 4.

    I promise I am never ever going to pay the leeches of the music industry another penny for any form of media.

    This is beyond being beyond a joke.

  • Comment number 5.

    Just when you think they couldn't possibly do anything else the music industry always finds a way to raise the bar!

    They get richer as everyone else suffers in the recession.

    Next up if you hum a song in public without permissions you will be fined billions of pounds and then stuck in jail for so long you wont need a pension.

    What bothers me more is that big music stars will make more money and struggling artists will get nothing.

    Don't even start me on PRS and its relentless chase for cash for my shop, which I had sold and advised them of the sale, even though they were getting money from the new owner. In fact I was due cash back as I had paid up for a year and sold the shop prior to the end of the year.

  • Comment number 6.

    Ridiculous. I don't believe this to be true, but if it is, I'm starting to sympathise with file-sharers.

  • Comment number 7.

    The ASCAP and its worldwide bretheren are numpties

  • Comment number 8.

    Muppets. All this will do is drag ASCAP's PR (and by association the artists) further through the mud. Amazing stupidity. Do they have a finale involving a public show where they torture bunnies?

  • Comment number 9.

    Copyright owners are fighting a losing battle.

    One day soon they are going to realise that everyone is buying their products from suppliers who do not impose such ridiculous limitations on their material.

    There are bands, like Marillion, who now sell their material directly to their fans. You can legally download free versions of their songs from their website and these can then be converted into realtone ring tones, again for free.
    Because they have built up a relationship with their fans, many of them (including me) are more than happy to buy a physical copy of their albums as well as buying tour tickets and merchandise because we know that the profits are going directly to the band, not some corporate middle-man.

    Their albums are also free from copyright protection (DRM) so when I buy it I can make a copy on my PC and convert this to MP3, AAC or any other format I want, I can also make a copy of it to give to my friends. This is how I was introduced to the band and also how I've since introduced several of my other friends to them too. All of us have gone on to become big fans of theirs and between us have spent several hundred pounds on tickets, merchandise etc.

    Many new bands are now using this model to market themselves, the music is released for free on their website, and they do their best to get it to as wide an audience as possible and hope to make their money from concerts and merchandise.

  • Comment number 10.

    Is there no low the entertainment industry won't sink to?

    Hear that? Listen, that's the sound of a dying industry...

  • Comment number 11.

    Surely there's a fundamental flaw in ASCAP's argument? For a ringtone to be a public performance, it must be, er, publicly performed. To say that a phone on vibrate-only has publicly performed something which no-one has actually heard is just a teensy bit ridiculous.

    In any case, the phone companies' royalties (either paid direct, or by users indirectly) to the composers/performers presumably correctly license the material, so cover public performance.

    What is almost certainly not covered is the use of mobile phones to play tracks through the "loudspeaker" mode, so fining "educationally challenged plebs who play tinny music loudly" (#2) would be very welcome!

  • Comment number 12.

    Unbilievably stupid.

    Unless someone is making money, or preventing the potential of the copyright-protected material from earning money (i.e. you download it illigialy and give it to a friend therefore preventing two sales) then quite frankly the actual copyright should be irrilevant.

    If I want to stand in the street and start playing music then there should not be any law to prevent me from doing so, so long as I am not making money from it. The second I open a guitar case and start accepting donations is when the copyright should be in-breach.

    Unfortunately this isn't just a case of the music industry attempting to flex its wrinkled liver-spot-smeered muscles, its a reflection of America's sue culture. When you have one of the richest countries in the world completly dominated by laywers this sort of thing is hardly that surprising.

  • Comment number 13.

    ASCAP's theory is deeply flawed: the phone providers are not performing the tracks, they're only providing a recording which can be performed. By this theory, HMV is liable if they sell a CD which is then used without a licence in a pub jukebox. Utterly ridiculous.

  • Comment number 14.

    "I'm against the punishment of consumers and everything, but it would be brilliant to slap the educationally challenged plebs who play tinny music loudly from their tumour boxes on the bus with that fine though!"

    ----

    Chance would be a fine thing. I commute to work and I would dearly love to fine the chavs and other assorted teens and even some slightly older people who cause a disturbance on the train/bus, be it through playing music too loud, having a conversation on their mobiles, using their mobiles as some portable source of music for everyone or just be being plain unruly.

    The Japanese have it right, it's considered rude to use your mobile phone on the bus/train and I'm pretty certain that the same applies to loud music from said mobiles.

    On topic though, this is just another example of an industry that doesn't get it. When will they realise that the only way to preserve their industry is to open it up and allow (legally) the consumer to use the content in whatever way they wish to.

    People already use the music industries content in whatever way they see fit so what good is fining said people for playing any given song as a ringtone going to do?

    Oh wait I know the answer, it will make even more money for an already affluent industry.

    I'd bet that if Maddonna, Britney or any other "musician/artist" were asked they'd be very much against fining people for using their music as a ringtone (or in any other way that the music industry does not like), in fact I think they'd agree that the way the music industry goes after the consumer is wrong.

    The music industry needs to change at the top where the money grabbers are, but until that happens, we'll continue to see plots like this to screw the consumer.

    And sadly the law is stacked in their favour.

  • Comment number 15.

    Compose your own ring tones.

  • Comment number 16.

    ravenmorpheus: this is where The British Pirate Party comes in. They are in the process of starting up right now, so in the next election we will be able to vote for them, then they can change the laws to make sure this crap won't happen anymore.

  • Comment number 17.

    The word "killjoy" comes to mind. As does the word "slow". Ringtones have been around for years with no problems, why turn on them now? And what do the members of ASCAP think about this? I'd like to know if the composers feel they should be given royalties for their songs not being played...

  • Comment number 18.

    "ravenmorpheus: this is where The British Pirate Party comes in. They are in the process of starting up right now, so in the next election we will be able to vote for them, then they can change the laws to make sure this crap won't happen anymore."

    ----

    Yeah whilst I hope that is the case I doubt it will happen, the British Pirate Party will be about as effective at changing copyright laws as the Green Party have been at changing Environmental policy.

    Nope, sorry, whilst money is involved the consumer will always be the one who gets screwed over.

  • Comment number 19.

    Whatever next? Being charged for playing a car stereo or headphones too loud? What about humming a tune while in a queue at the canteen? Are they going to sue me for that?

  • Comment number 20.

    I'm fairly sure that under US copyright law you can use a certain amount (say 5%) of a copyright text (or tune) and have it fall under Fair Use, so surely the fact that no one lets their phone ring until they've heard the whole song through means there's not much of a case here anyway.

    Though that whole thing about creditting sampled tracks in music a while back suggests I might be wrong about how applicable that is...

  • Comment number 21.

    If the music industry is dying, why is there still music being made?
    This is crazy

  • Comment number 22.

    VampiricHoshi wrote:
    "If I want to stand in the street and start playing music then there should not be any law to prevent me from doing so, so long as I am not making money from it. The second I open a guitar case and start accepting donations is when the copyright should be in-breach."


    I may be wrong (it wouldn't be the first time, or the last) but I think you can play whatever piece of music you want in a live performance without having to pay any royalties.
    It is the bars, clubs, stadiums etc that have to pay the Performing Rights Society a fee for the right to have music performed in their venue, not the performer.
    As a performer you only have to pay royalties when you record a cover of someone else's music or use a sample of it in your recording (although sampling is even more complex), in effect you could do a 3-hour set of cover songs at a festival and not have to pay a penny to the copyright holders.


    A relevant article can be found at:
    http://www.venturenavigator.co.uk/content/499

  • Comment number 23.

    ravenmorpheus: I wouldn't be so quick to dismiss them, look at how well the Swedish Pirate Party has done recently, getting at least one seat in the EU Parliment! And the German one now has a seat in the German paliment!

  • Comment number 24.

    Capitalist extremism = madness!

    ASCAP - the last three letters of their acronym could stand for "CAPitalists" - any suggestions on what the "AS" could mean?

  • Comment number 25.

    "23. At 12:30pm on 09 Jul 2009, G5airplane wrote:

    ravenmorpheus: I wouldn't be so quick to dismiss them, look at how well the Swedish Pirate Party has done recently, getting at least one seat in the EU Parliment! And the German one now has a seat in the German paliment!"

    I'm well aware of the number of seats that "pirate" parties hold in the EU Parliament.

    But people, like youself, seem to think that just because they have a seat means that there will be widespread changes in law regarding copyright and piracy.

    That isn't the case. If anything comes of these "pirate" parties having seats in the EU Parliament, or any other parliament, it will take a very long time, they are in the minority and as such minorities have a very difficult time in changing the way laws are focused.

 

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