ASCAP Now Claiming That Your Mobile Phone Ringing Is A Public Performance

from the pay-up dept

Ah, those collection societies just never learn, do they? We’ve discussed in the past how ASCAP once threatened the Girl Scouts for singing songs around the campfire, but in the past few years it’s been ASCAP’s counterpart in the UK that’s been in the news the most for things like threatening small business owners after calling them on the phone and saying they hear music in the background or threatening a stable owner for playing the radio to her horses. I guess ASCAP was feeling a bit left out. Its latest move is to claim that legally purchased ringtones on mobiles phones, playing in public places, represents a public performance for which it is owed royalties. Songwriters and music publishers already are paid royalties on ringtone purchases, but ASCAP is claiming that buying the file is entirely different than “the performance” (i.e., the phone ringing).

In the EFF’s response to ASCAP, it notes that copyright law makes a specific exemption for performances made “without any purpose of direct or indirect commercial advantage.” ASCAP counters that even if that’s true, only the owners of mobile phones can make that assertion, but the mobile operators (AT&T, Verizon, Sprint, etc.) still need to pay up for performance rights because they are commercial entities, even if the use of the phones is not. The EFF goes on to point out how this reasoning does not mesh with the law, the case law, or the intended purpose of copyright.

On top of this, even if, in some bizarre, twisted interpretation of the law, a ringtone playing on a phone was a public performance, how would it be the mobile operators’ liability to pay? That would be like saying that Apple should pay ASCAP royalties because songs it sells on iTunes could potentially be played through speakers publicly somewhere. Perhaps I shouldn’t be giving ASCAP ideas…

However, this is not a surprise. It’s simply the way industry groups (even those representing the songwriters, rather than the labels) have always worked. It’s always about “extending” rights. That’s why copyright was broken down eventually into different types of rights — including distribution rights and performance rights, because the “old” rights didn’t fit the new technologies. It’s a particularly obnoxious trick to claim that, because a single file can be used in multiple ways (for both distribution and performance), it is now subject to both types of royalties. The only reason those separate royalties were broken out in the first place was due to angry demands from these sorts of groups about how the old “rights” didn’t cover new media versions of content. To then double back and claim multiple coverage is beyond obnoxious.

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Comments on “ASCAP Now Claiming That Your Mobile Phone Ringing Is A Public Performance”

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95 Comments
Rob R. (profile) says:

Re: Re: Re:

Amen! I use the old fashioned bell ringer on my iPhone and it works just fine. Once my son get further along in his guitar lessons I’m going to use one of his songs as a ringtone to support him. Does this mean I’ll have to pay my 13 year old son each time anyone calls me? Wow, talk about augmenting your allowance…

Anonymous Coward says:

Re: Re: Re:

“Yep – default ring tones will work just fine for me. They can keep them.”

Pretty soon those default ring tones will be copyright. Boycotting is a good solution but then when you start boycotting these corporatinos will dig deeper into taking away your existing rights or making you pay for them. To some extent we must force our government to destroy stupid laws and pass good ones. Vote idiots out of office and vote for people like Ron Paul.

RD says:

Middlemen

Greedy, scumbag middlemen like this are the reason why the music industry has such a bad rep these days. Nothing like twisting the law completely out of proportion to reality (ASCAP), or the intention (RIAA) to really put people off and turn an entire generation of consumers against you. Good job you greedy pricks! You are doing FAR more damage to your industry than any piracy or “unpaid public performances” ever could!

Ima Fish (profile) says:

Remember those ghetto boxes, also called boom boxes, we used to use in the 80s through 90s? I have no doubt that they would be considered public performances in today’s bizarro world.

Everyday the music industry is turning our world into something like a parody from the Onion. I can see the headline now… “Area man sued for not paying public license fee on his Boom Box”

Robb Topolski (profile) says:

Wrong Tactic - ASCAP should be suing to force operators to stop using songs as ringtones

I think ringtones are the most awful representations of music available. Those tinny-sounding snippets do the concept of music a complete disservice. Whatever happened to a phone just ringing?

To call it a “public performance” is being gracious, but to do so in a court filing borders on perjury.

Yakko Warner says:

Re: Wrong Tactic - ASCAP should be suing to force operators to stop using songs as ringtones

Re: your subject — But they want the music to be played, so they can demand payment for it.

On the bright side, maybe the mobile phone ops will rebel by no longer providing/allowing these obnoxious auditory assaults on phones, and phones will have to just RING. YES! FINALLY! ARRGH!!

Sorry. I feel better now.

Unfortunately, what’s far more likely is that the mobile corps will find it less costly to settle than fight, and you’ll see a new charge on your phone for every incoming call, which will be slightly more than the fee they pay to ASCAP — might as well make a little money on the deal themselves, right?

Asmo (profile) says:

|These record companies, or getting out of hand to the point of being criminal. They need to be stopped once and for and people need to start organizing a pirate party in America to tackle these greedy business owners who think they can get away with anything, but until the people unit we will just sit hear and complain and shrug our shoulders.

Hayden Frost (user link) says:

they don't understand basic economics

Ringtones are already at the price the market is willing to accept (if not too high). If they attached a performance royalty to ringtones, consumers would still be using the ringtone in the exact same manner as we are now. We get absolutely no new value from this price increase.

Additionally, raising prices will not magically bring in more money. Ringtone retailers would pass most or all of the price increase onto consumers, thus decreasing sales (and in following, the royalties from those sales). As the recent details on gaming have shown, consumers generally have a fixed amount of income for entertainment. Music competes against games, dvds, theaters, and more… and music is losing right now. When you are in the losing section of a competitive market, it’s because your prices are too high for the value consumers obtain from your product. They should be lowering prices, not raising them.

Albert Nonymouse says:

Re: Re:

She was running a business stabling horses, not a nightclub where the music playing is the core of the business. Do you understand that? Are the pictures hanging on the wall subject to performance rights because they are in a business? Do the magazines in the lobby deserve performance rights because they are in a business? Does the carpet manufacturer get a slice because people are walking on it in a business? How about the paint manufacturer – they deserve something since the pretty paint is in a business. Don’t forget the gardner – he gets something extra everytime someone drives by and looks at the pretty landscaping of the business. The grower of the coffee beans that go into the coffee maker in the lobby should get something extra because the coffee is being served in a business.

Unless money is being expressly charged for the music, the idea that anything is owed the music industry is ridiculous. People should be laughing at the notion, not taking it seriously and defending the practice.

The Infamous Joe (profile) says:

Re: Re:

I don’t understand this in the least. For a bar or diner or whatever, it makes *some* sense, as I’m less likely to go to a bar that plays country music, so the music playing *might* be a deciding factor, and thus, valuable.

Onto horse stables, dentist offices, garages, etc: I don’t factor in the music that is playing in any of these places when deciding which one to give my money to, so why would they need to pay? They aren’t making a profit due to the music, they are making a profit and happen to have music playing.

It’s greed, plain and simple. The fact that you swallow the bogus rules they’ve designed to make them richer reflect very poorly on you.

Mike Masnick (profile) says:

Re: Re:

Your assertion about the stable was incorrect as many people pointed out she was running a business. Do you understand that? Business pays music for performance. Do I need to make it even more simple.

No. You are incorrect. She was running a business, but the PRS license fee is a *performance* fee for using the music to attract customers.

That’s not what the music was used for. It was played for horses — not people.

Dez (profile) says:

So here's the deal:

If you want to charge me money (or the operators which will pass down the fee to me) for playing a ringtone of a song in public. FINE… go right ahead. I just won’t buy your song. This also means that anyone that might have heard my ringtone and thought it was worth purchasing during an impulse moment wouldn’t have purchased it either.

I’m waiting for the day that having my car windows down and the radio/CD/iPod playing is also considered a public performance.

I’m also a music teacher, and it would cause me to stop teaching newer music (thereby generating less revenue for you) if you decided that I had to pay you each time I held a piano recital.

I purchase your works legally. STFU.

–dez

fogbugzd says:

Easy solution

There is an easy solution. I won’t buy any more ringtones for fear that they will go off in a public place and I will get sued. The phone companies should stop allowing the use of ringtones because they might get sued.

If everyone stops buying ringtones and playing the radio, then the music industry will be SO much better off.

max (profile) says:

data revenue

A statutory rate on ALL mobile2mobile multimedia data transactions is a fair way to do business. These transactions have not really began yet and now is precisely the time to establish this rate. ASCAP is stretching their performance right territory a bit with what I’m reading here. However, there is some validity in the carrier’s obligation to NOT support clear violations of copyright laws as ISPs have done. In the case of charging fees for copyrighted materials to go from point A to point B, the copyright holder should obviously be compensated. It is our belief at datarevenue.org that the wireless carriers have a responsibility to honor this fundamental function of copyright protection when these transactions occur. This would cover any peer2peer data transactions and again, is a fair way to do business. If a user likes something enough to pay to share it then they will. If not, then it won’t be shared by them. Either way data infrastructures should own up to the responsibilities the ISPs were able to avoid because of the multimedia players inability to unite back in the day when p2p was just beginning.

Sneeje (profile) says:

Re: data revenue

Nice word salad.

What rate are you referring to? And what obligation? You mention that there should be a statutory rate (i.e., tax) on ALL transactions, yet we can easily show that all transactions cannot possibly be infringing (phone rings in my house), so how would such a rate be set? Why is this fair to all participants, which would include the consumer?

And, what I’m really interested in is why you thing the rate is both necessary and *desired*? Why do you believe the rate would increase and not cannibalize other revenues?

max (profile) says:

Re: Re: statutory rates

It all boils down to the U.S. constitution. That is where copyrights start. It is a fundamental right that a person or entity with copyrights to something they created have a right to a fair share of the pie if another party is gaining from it’s use. P2p sharing of multimedia will soon be on mobile phones. When that happens it should be the responsibility of the wireless carriers to make sure the rights holders are compensated since the wireless carriers are charging for those transactions. The ring tone thing in your house is NOT a transaction that the wireless industry gained from so it would be exempt from what we are proposing.

Mike Masnick (profile) says:

Re: Re: Re: statutory rates

It all boils down to the U.S. constitution. That is where copyrights start. It is a fundamental right that a person or entity with copyrights to something they created have a right to a fair share of the pie if another party is gaining from it’s use.

No, that’s incorrect. The Constitution is clear, that *limited* monopolies may be granted for the sole purpose of “promoting the progress of science and the useful arts.” What you are talking about is not for promoting such things at all.

P2p sharing of multimedia will soon be on mobile phones. When that happens it should be the responsibility of the wireless carriers to make sure the rights holders are compensated since the wireless carriers are charging for those transactions.

Again, you have a very troubling view of 3rd party liability, that (thankfully) the US does not recognize. Hopefully it stays that way.

max (profile) says:

Re: Re: Re:2 fundamental rights

If we prevent artists and scientists etc from financially benefiting from their labors why would there be many in those professions?
“A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.”

Mike Masnick (profile) says:

Re: Re: Re:3 fundamental rights

If we prevent artists and scientists etc from financially benefiting from their labors why would there be many in those professions?

Wait. No one is talking about preventing anyone from financially benefiting from their labors. In fact, the examples we give show how artists can make more money from their labors by recognizing the fundamental nature of music.

Sneeje (profile) says:

Re: Re: Re: statutory rates

a) The US constitution states:
“To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”

First of all, that isn’t a “fundamental” right by any definition, for multiple reasons, not the least of which is the use of the word “limited”.

Second of all, the right is being defined by you, not everyone, to include “fair share of the pie” and you have a very narrow and self-interested definition of “fair”.

b) The reasoning you use is that because some people must be compensated you are charging for all MMS transactions, even if all transactions aren’t infringing. Why is this fair?

And, you haven’t answered my other question about revenue, but I’ll ask another–what makes you believe that charging for MMSs won’t drive consumers to use other methods of sharing, which mobile operators won’t be able to track?

CleverName says:

Re: Re: Re:3 mms

Why would I want to send a movie from one phone to another ?

I think this is an attempt to get a foot in the door. Once this is in place, it would be a small leap to claim that TCP should be subject to the same entitlement taxation.

I propose that all copyright material be forced to use a different port. This would allow for blocking the taxable material

Sneeje (profile) says:

Re: data revenue

Holy crap… I just read some of the ideological wishful thinking on your site:

What I would like to quantify if possible is what proportion of current MMS involve copyright material. Clearly a large proportion of it is perfectly legitimate personal photos. Is it possible to ascertain the copyright proportion?
The proportion of current MMS copyrighted material in the U.S. basically is any MMS in fixed form. That means any and all videos, music and images (multimedia) is copyrighted the moment it is fixed according to U.S. laws. Even legitimate personal photos are copyrighted. Now, we’re NOT proposing that the wireless industry should administrate the particulars. We are proposing they simply pay a statutory rate on ALL MMS and authorized 3rd parties in turn will monitor, collect and distribute that revenue to its members that want to enforce their rights as the copyright holder.

You have to be kidding right? You realize that this scheme will collapse under the weight of administration? There is incentive for anyone who sends MMS’s to sign up and enforce their rights to receive payment. I will start sending my friends hundreds of pictures I took since they won’t ever have to pay directly–everyone is taxed.

max (profile) says:

Re: Re: wishful thinking

Good point about administration. However,the statutory rate would be a per megabyte rate making any payouts to a sector, (images vs videos) a relative split based upon actuary tables. Keep in mind that when you send or receive mms you are being charged an average $1.99 per mb and .25 each way right now. If the statutory rate was .10 per mb then a person trying to send hundreds of pictures in hopes of generating a profit would be wasting their time, energy and money doing so. This system is for those that rely on their creations to support themselves.

Mike Masnick (profile) says:

Re: data revenue

However, there is some validity in the carrier’s obligation to NOT support clear violations of copyright laws as ISPs have done.

Wait, why? Why is it a 3rd party’s obligation at all? You don’t blame Ford for the fact that people speed, do you? You don’t blame Dell for the fact that people hack, do you?

Why do you want to blame service providers for the fact that people infringe?

In the case of charging fees for copyrighted materials to go from point A to point B, the copyright holder should obviously be compensated.

Yes, and with ringtones they are compensated. That’s the point. But it’s compensation for the distribution and reproduction right,s not performance rights. ASCAP is trying to add another fee.

It is our belief at datarevenue.org that the wireless carriers have a responsibility to honor this fundamental function of copyright protection when these transactions occur.

Your belief is wrong. You are blaming a third party for actions of another — and even worse, assuming infringement in all cases.

That’s sickening.

This would cover any peer2peer data transactions and again, is a fair way to do business.

That’s not fair. That’s a huge freaking scam.

max (profile) says:

Re: Re: peer2peer

Let me make it very clear that we are only talking about a statutory rate for p2p mms transactions via mobile phones. This has not even started yet. But it will soon. Now is the time to put a fair system in place. Within 5 years or so you will be able to send a full movie mobile2mobile. What kind of mess will that be if something is not in place BEFORE that happens?

Rob R. (profile) says:

Re: Re: Re: peer2peer

I hereby claim copyright on the sound of a fart because I made the sound just now and it’s now mine. Each and every time you fart, you owe me. If you fart in public, you now have to pay a public performance fee for that fart. Any farts in elevators are public performance and you owe me. Farting is your own home is ok, but if you have company it’s public performance and you owe me. Should I just send you a bill? It will come from “Farting Inc.” and be payable upon receipt or I’ll sue you for $80,000 per fart.

Oh, and you’ll soon be required to wear fart-detectors that will report any and all farts to me for collection.

-This post subsidized by America’s bean and broccoli farmers.

John Doe says:

Re: Re: Re: peer2peer

Your kidding about the mess thing right? You guys are the ones creating the mess; why can’t you see that?

Here is a little food for thought for you over at datarevenue.org: I don’t copy any digital good illegally. But I can assure you, if you start taxing my cell phone bill and/or broadband bill for activities I don’t participate in, I will start participating. I will have a copy of every song, movie, photo ever made. So, if you want to sell me something; fine sell me something. If you want to tax me on stuff I “might” do, then I will do it.

max (profile) says:

Re: Re: data revenue

The Internet generation has to stop lumping copyright protection with big business. Big business’s job was to exploit copyrights on behalf of the creators that didn’t know how to do it themselves. Well they exploited themselves right out of business but you better believe they enjoyed it while it lasted. Now it’s over. This is the age of self publishing. Those who publish in this age have to learn to incorporate or refine existing laws to define this era. History shows it’s more likely to be done by improving the existing system NOT by totally destroying the idea born of many generations of shoulder standing.

Ben says:

Bizarre? You am in da USofA!

The US is the home of bizarre, shitty, unenforceable laws. Now the Supreme Court will contemplate keeping “sexually dangerous” in prison for life well after their sentences have ended, this like the “three strikes” law would mean that an eighteen year old caught boffing his sixteen year old girlfriend will (if he lives to the age of 70) will have spent fifty two miserable years in confinement.

His revenge for this outrage will be that at the current rate of $48,000 per year (bound to go up) he will have cost the taxpayers $2,496,000 (at a minimum) by the end of his existence.

RD says:

You still can

“If we prevent artists and scientists etc from financially benefiting from their labors why would there be many in those professions?”

Nothing is preventing them now. They can try to profit from their labors with OR without copyright law. People will still create even if there wasnt copyright monopolies. People would still make money from it. Different people than now, perhaps, and not in the same way, but it will still happen.

For instance, a painter can still make a painting and try to sell it for $10,000 (or $1,000 or whatever the market will bear) and make and sell prints of this painting as well. Same as it is now. That original painting would still have value, still be an original.

No one is saying that you SHOULDNT be able to make money from your creative labors. The point being raised is, at what point does the law stop serving society (“promote the progress”, “limited times”, etc) and start becoming something that only serves large, powerful corporations AT THE EXPENSE of the consumer, and the contract with society (the constitution).

theskyrider (profile) says:

I smell a conspiracy here....

As far as the fart thing goes, the oldest person in the world should get the royalties. After all, they have the prior art. Now when that person dies, for the next 95 years (assuming that copyright isn’t extended and made retroactive before the end of the term) that person’s estate gets the royalties. Nuff said.

Now for the conspiracy part:

The reasons that music prices are so low (hear me out) is that music is everywhere. It’s ‘in the air’ so to speak. What happens if the INDUSTRY gets their way in raising public performance fees is that people will stop playing it. Restaurants in Australia (saw the article here) used to paying $390 a year in fees suddenly get a bill for $18,000 a year will stop playing the music. Fewer people playing the music means that it becomes more scarce, and they can charge more for it.

This may take a generation or two, but by that time they will have the technology to listen to a random persons’ thoughts and charge their account for having a song stuck in their head.

On the bright side: I suggest that the RIAA be turned into a nationwide police force. I’ll call them the FBMI or Federal Bureau of Music Investigators.

If a song is played in public – such as a car going down the road blaring music that can be heard for five blocks, they should have the right to pull that person over and bill them for public performance. This will lead to quieter neighborhoods, except if they happen to pull over a gangbanger with a loaded TEC-9 in the car.

Another Coward says:

Somehow this isn’t surprising. There was a case in which the makers of Rocky IV sued the makers of a documentary film for a scene where a cellphone rang to the theme of Rocky IV.

However, if this does become a precedent, there is one thing we could ask… considering that most people don’t wait a full three, four minutes to take their calls, i.e. the full length of a song, how is that a public performance if it’s not everything? People can listen to snippets of tracks before they buy mp3s anyhow. Should they then have to pay for an incomplete “product”?

P.Helix says:

how about defining a public performance..

What about when you are driving and play you music loud – is that a public performance..
Maybe the police can arrest people who play their PMPs too loud and have leakage from their head phones..
Or fine you for playing music at the beach/picnic..
Or how about demand payment for paying music in an area with more than 4 people!!

Iva Faye Knayme says:

Ring tones are evil

The EFF says “Are we each liable for statutory damages (say, $80,000) if we forget to silence our phones in a restaurant?”

I’m personally all for it. Anything that will silence the boors who feel their “need” to be on constant communication with all their equally annoying friends is somehow more important than their fellow diner’s right to enjoy a meal in peace is all right with me.

And you clowns who talk on the phone while taking a dump in a public rest room. . . you just friggin’ creep me right out.

wrath5000 says:

I think it’s astounding at how the original intention of copyrights has been completely obliterated by unabashed greed. The length of copyright keeps increasing (provided the “maintenance fees” are paid, of course), and it’s getting to the point where anything that’s not in public domain already, will never become public domain.

I will say this about ASCAP: they have a hell of a racket going. It’s one of the few businesses I can think of that makes money off of something that might happen. For instance, if a business holds live performances, they have to pay extra since the performers MIGHT play copyrighted material.

This is just gotten bloody ridiculous. No, wait–scratch that. It’s gone waaaaay past ridiculous long before now.

BMI & ASCAP Killed Superman..not kryptonite says:

ASCAP & BMI Killing Music Venues Across The U.S.A.

“What is at stake is the United States of America’s live music scene!”

Venues are shutting live music out of their format because they just can’t afford it!
ASCAP & BMI are forcing live music venue owners to buy into their programs or face their high powered attorneys, stiff fines and penalties. Coffee shops, bars and festivals are not having live music at all due to the aggressive policies put forth by these companies. Some of the greatest American composers and bands have been nourished in small venues like these across the nation. Our society must find a way to successfully bridge copyright laws and at the same time keep venue owners from wondering whether or not to have live music. The price of losing music venues is too great and what is at stake is the United States of America’s live music scene!

Here is ASCAP and BMI’s policy in short:
A musician plays a cover tune at a venue. Venue owners must pay hundreds of dollars in licensing fees each year for that musician to have the freedom to perform that cover song. Unfortunately, the small business owner has to decide whether to pay the electric bill or keep the live music…you guessed it…
NO MORE LIVE MUSIC!

Finally-The risk of doing nothing is that ASCAP & BMI will continue to make millions in collections from larger venues while smaller venues in major cities, towns and villages are simply disappearing. This is very alarming and should be cause for great concern, because America is losing its local live music scene. These companies that are supposed to be representing all musicians need to find a healthier solution that is a win/win for music venues, songwriters, common performing musicians and radio play celebrities.

Here is an article that proves this is happening and it is a real problem:
http://www.news10.net/news/featured/story.aspx?storyid=64731&catid=49

This very important issue needs your support and attention. Here is what you can do to stop the spiral downward!
• Forward this information to any friends, family, musicians, artists, legislators
and politicians who will join this crucial fight.
• Talk to people about this and spread the word!
• Email this document to the President of ASCAP, Paul Williams by going to ASCAP’s website and cutting and pasting this document into their contact form at: http://www.ascap.com/info-form.html
• Snail mail this document to: ASCAP, Attn: Paul Williams, One Lincoln Plaza, New York, NY 10023
• Contact ASCAP at 1800 952 7227 and ask them for a solution to this problem.
• Email this document to the President of BMI, Ralph n. Jackson at: info@bmifoundation.org
• Snail mail this document to: Ralph N. Jackson, BMI Foundation Inc., 320 W. 57th Street, New York, NY 10019
• Contact BMI at 404 261 5151 or 310 659 9109 or 305 673 5148 or 615 401 2000 or
212 586 2000 and ask them for a solution to this problem.

No Government's Puppet says:

F*CK 'EM!!!

Welcome to the new FASCIST GREEDY era of the New World Order and the elite who’s behind all this. They just want to control you more, take more of your money and slave you so you have to work endlessly to pay the bills just to barely get by.

Now Obama thinks that it’s HIS right to shut the Internet down when THEY (the Bielderberg Group) sees fit. MORE FASCISM, MORE CONTROL, MORE PUPPETS IN THE BOX.

WE MUST REVOLT!

Lynx Fireze says:

data revenue

Hey. Dumbasses, you do realise that if you try to force people to pay extortionate prices for “music” and then try to force them to pay more every time they share with or play that music to their friends (or even use it for it’s expressly intended purpose in terms of ringtones) you’re only going to boost piracy and destroy your own sales. Lower your prices. Stop being dicks and leave the effing pirates to their piracy. They aren’t terrorists and even if the revenue of piracy ALL goes to terrorism then could you please tell me what damage they intend to do with the ?0.00 I gave them……

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