- 6 Jul 09, 10:15 GMT
Ringtones - sometimes they are funny, sometimes entertaining, sometimes rude and, yes, sometimes they are just plain annoying.
Ringtones 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."
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.
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