Undernews is the online report of the Progressive Review, edited by Sam Smith, who covered Washington during all or part of one quarter of America's presidencies and edited alternative journals since 1964. The Review has been on the web since 1995. See main page for full contents

June 24, 2009


Electronic Frontier Foundation - ASCAP (the same folks who went after Girl Scouts for singing around a campfire) appears to believe that every time your musical ring tone rings in public, you're violating copyright law by "publicly performing" it without a license. At least that's the import of a brief it filed in ASCAP's court battle with mobile phone giant AT&T.

This will doubtless come as a shock to the millions of Americans who have legitimately purchased musical ringtones, contributing millions to the music industry's bottom line. Are we each liable for statutory damages (say, $80,000) if we forget to silence our phones in a restaurant?

ASCAP's outlandish claim is part of its battle with major mobile carriers (including Verizon and AT&T) over whether ASCAP is owed any money for "public performances" of the musical ringtones sold by the carriers. The carriers point out that the owners of the musical compositions (i.e., songwriters and music publishers) are already paid for each ringtone download, but ASCAP claims that it's owed another royalty for the "public performances" (i.e., ringing in a restaurant) of those same ringtones.

Fortunately, ASCAP is wrong. Even if the incidental mobile phone playback of a short snippet in a public place were viewed as a "public performance" (something no court has ever held, and that would also put you in jeopardy for playing your car radio with the window down), the Copyright Act has a specific exception, that covers performances made "without any purpose of direct or indirect commercial advantage." . . .

Confronted with Section 110(4), ASCAP makes an even more dangerous and wrongheaded argument -- that the carrier cannot "stand in the shoes of its customer" when asserting a copyright defense like Section 110(4). In other words, because AT&T is in the ringtone business for the money, it's on the hook even if the customer isn't.


Brand Name Bullies - You may think that it's O.K. for little campers to sing "Happy Birthday" and "Row, Row, Row" around the campfire for free, without asking for permission. But in fact, you may have to pay a license to a licensing society known as ASCAP. . .

In 1996, ASCAP decided that that since hotels, restaurants, funeral homes and resorts pay for the right to "perform" recorded music, and since many summer camps resemble resorts, why shouldn't they pay too? . . .

After reportedly opening its negotiations with the American Camping Association with an offer of $1,200 per season per camp, ASCAP eventually settled on an average annual fee of $257. But once ASCAP's plan went public, and people learned that the Girl Scouts were among the 288 camps being dunned, the group beat a hasty and embarrassed retreat.


Anonymous damn said...

Could the ultimate goal of this ruinous scheme be other than to rob us of live performances that haven't been performed in the exactly same way until the author shot himself in the fucking head and breathed a sigh of relief.

June 24, 2009 10:28 PM  
Anonymous Anonymous said...

In the UK, no one can play a radio in an office or shop anymore in case a customer overhears. A workplace such as a restaurant kitchen has to pay performance fees or switch off. Even farmers and animal breeders who play music for their livestock have been hit. Time to kill the f***ing lawyers.

June 25, 2009 1:25 AM  
Blogger m said...

Next step for the entertainment industry will be royalties demanded for when you could be listening or watching, but aren't.

June 25, 2009 7:15 AM  

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