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Sorry ASCAP, A Ringtone Is Not A Public Performance

from the nice-try-though dept

ASCAP and BMI have been pushing all sorts of ridiculous claims over the past few months, trying to squeeze extra money out of pretty much everything, rather than actually doing right by those they represent and helping them adapt new business models based on giving people a reason to buy. Beyond claiming that Congress should make sure their royalties never decrease, they've also been saying they deserve money for things like YouTube embeds (even though YouTube already pays them for that same traffic) and the 30 second previews on iTunes and other music stores. However, the most ridiculous of all was trying to claim that ringtones are a public performance, and thus mobile phone providers need to pay ASCAP/BMI. The thing is, ASCAP and BMI already get paid for ringtone purchases -- but this was an attempt to get a second payment on top of that for the fact that people might hear the ringtones.

Thankfully (as a whole bunch of you have sent in), a judge wasted little time totally rejecting that reasoning. The court pointed out that the Copyright Act is pretty clear that there's no royalty needed for any sort of "performance" that isn't done for commercial advantage and "customers do not play ringtones with any expectation of profit." It's a pretty complete rejection of an obvious stretch by ASCAP.

We might hope that ASCAP will take this and begin to recognize that the best way to serve songwriters is helping them embrace new business models, but we expect that instead they'll keep looking to squeeze more money and double dip from other providers... while continuing to pay industry insiders to smear those who want to protect consumer rights.
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Filed Under: copyright, double dipping, public performance, ringtones, songwriters
Companies: ascap, bmi, eff


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  1. identicon
    Dave, 15 Oct 2009 @ 8:50pm

    ascap

    i'll confess that back in the day when i was a starving musician, i actually did investigations for ASCAP. you'd be sent to a bar, and write down names of tunes you heard, and type up a report, and try not to be obvious. yeah, old school. when you worked it all out, the money sucked, but I needed work. the regional rep was a complete dipsh*t, it was an inept operation, and eventually i was embarrassed to be doing it, and couldn't see the point. the fact is, no matter what you report, ASCAP is basically charging a standard fee, and you know there's no way to accurately count playings of everything and actually pay artists what they're supposedly owed. finally, on a bad investigatory jaunt, i typed up a very sarcastic report, and was canned.

    later, i saw it from the other side. i had a gig in a restaurant. the owner told me about ASCAP putting the touch on him for the fee. He responded by canning the radio altogether. I also made sure I was playing no ASCAP tunes, which was quite easy. ASCAP still tried to weasel some money out of him, and he told them where they could put it. ASCAP was running a joke operation, and I doubt it's any better today.

    I don't know how BMI operates; somehow I never crossed paths with them.

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