ASCAP Copyright Suit Against Phone Maker Doesn't Ring True

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The American Society of Composers, Authors, and Publishers (ASCAP) is locked in a copyright infringement battle with cellphone titan AT&T over ringtones. The Electronic Frontier Foundation (EFF) uncovered ASCAP's opposition to the phone company's summary judgment motion filed under seal June 12 in the U.S. District Court for the Southern District of New York (In the Matter of the Application for the Determination of Reasonable License Fees for Performances via Wireless Transmissions and Internet Transmissions by AT&T Wireless f/k/a Cingular Wireless, USA v. ASCAP, 41-1395(WCC)).

ASCAP is arguing that whenever a cellphone ringtone blares the theme from "Fresh Prince of Bel Air" or "Feelings" in a swanky restaurant or other public venue, AT&T is on the hook for violating Copyright Law concerning public performance without a license. Mobile carriers selling musical ringtones already pay composers and music publishers for ringtone downloads, but ASCAP contends another royalty is due for the public performance of the ringtones.

Not so fast, says EFF legal analyst Fred von Lohmann, who cites the exemption from copyright infringement found in 17 U.S.C. sec.110(4), namely: "performance of a nondramatic literary or musical work otherwise than in a transmission to the public, without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters or organizers...."

The "pockets" of mobile phone carriers are deeper than those of the consumers containing the phones and downloading the ringtones, which may explain in part why ASCAP has AT&T in its crosshairs. Consumers are also shielded from a copyright claim by the "fair use" exception. The EFF notes that no court has yet ruled that the incidental cacophonous cellphone snippet of music in a public place constitutes a "public performance."

ASCAP seems to be arguing that although the consumer is not liable for copyright infringement when his or her phone blurts "The Mexican Hat Dance" during a church sermon, the copyright owner can sue the technology company that enabled the consumer to experience the abject humiliation of the ringtone going off in church.

Suing a cellphone giant is likely to generate bad vibrations for ASCAP.