102ASCAPvsWiTelusers . US Music Trade
Association Wants More Money from Ringtone
Sales
•• •
July 3, 2009 / 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 Electronic Frontier Foundation
(EFF), a USA lobby group, has now urged a
federal court to reject the claim.
•• •In
an amicus brief filed July 1, 2009, 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,"
according to 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. Should
ASCAP prevail, 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.
•
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