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.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: copyright, music, public performance, ringtones
Companies: ascap
Reader Comments
Subscribe: RSS
View by: Time | Thread
Legal advice from a friend
Uh, because they're the ones with money.
Love,
Steve Dallas
[ link to this | view in chronology ]
Re: Legal advice from a friend
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re:
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.
[ link to this | view in chronology ]
Middlemen
[ link to this | view in chronology ]
Re: Middlemen
[ link to this | view in chronology ]
Re: Re: Middlemen
[ link to this | view in chronology ]
Re: Middlemen
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
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"
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Wrong Tactic - ASCAP should be suing to force operators to stop using songs as ringtones
To call it a "public performance" is being gracious, but to do so in a court filing borders on perjury.
[ link to this | view in chronology ]
Re: Wrong Tactic - ASCAP should be suing to force operators to stop using songs as ringtones
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?
[ link to this | view in chronology ]
Re: Wrong Tactic - ASCAP should be suing to force operators to stop using songs as ringtones
Good point!
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
they don't understand basic economics
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.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
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.
[ link to this | view in chronology ]
Re:
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.
[ link to this | view in chronology ]
Re:
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.
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re:
If a tree falls down in the woods and no one is there to hear it, does it make a noise?
If a horse hears a song in a stable and ASCAP is on the case, does someone have to pay a licensing fee?
[ link to this | view in chronology ]
Re: Re:
It doesn't matter, we assume it made a noise and that noise is copyright so you have to pay me royalties.
[ link to this | view in chronology ]
BINGO!
[ link to this | view in chronology ]
So here's the deal:
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
[ link to this | view in chronology ]
Re: So here's the deal:
You're part of them problem, I'm afraid.
They claim that buying pirated DVDs/CDs funds terrorism, but I'd be more likely to believe that legally buying their media is funding terrorism..
[ link to this | view in chronology ]
Easy solution
If everyone stops buying ringtones and playing the radio, then the music industry will be SO much better off.
[ link to this | view in chronology ]
Re: Easy solution
[ link to this | view in chronology ]
data revenue
[ link to this | view in chronology ]
Re: data revenue
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?
[ link to this | view in chronology ]
statutory rates
[ link to this | view in chronology ]
Re: statutory rates
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.
[ link to this | view in chronology ]
fundamental rights
"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."
[ link to this | view in chronology ]
Re: fundamental rights
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.
[ link to this | view in chronology ]
Re: statutory rates
"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?
[ link to this | view in chronology ]
mms
[ link to this | view in chronology ]
Re: mms
[ link to this | view in chronology ]
Re: mms
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
[ link to this | view in chronology ]
Re: Re: statutory rates
Um, property rights are not fundamental in the US Constitution??
[ link to this | view in chronology ]
Re: Re: Re: statutory rates
[ link to this | view in chronology ]
Re: data revenue
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.
[ link to this | view in chronology ]
wishful thinking
[ link to this | view in chronology ]
Re: wishful thinking
[ link to this | view in chronology ]
Re: wishful thinking
[ link to this | view in chronology ]
Re: Re: wishful thinking
[ link to this | view in chronology ]
Re: wishful thinking
[ link to this | view in chronology ]
Re: data revenue
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.
[ link to this | view in chronology ]
peer2peer
[ link to this | view in chronology ]
Re: peer2peer
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.
[ link to this | view in chronology ]
Re: Re: peer2peer
[ link to this | view in chronology ]
Re: Re: Re: peer2peer
[ link to this | view in chronology ]
Re: Re: peer2peer
[ link to this | view in chronology ]
Re: peer2peer
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.
[ link to this | view in chronology ]
Re: Re: peer2peer
[ link to this | view in chronology ]
Re: Re: Re: peer2peer
[ link to this | view in chronology ]
Re: Re: data revenue
[ link to this | view in chronology ]
Re: data revenue
[ link to this | view in chronology ]
Re: data revenue
[ link to this | view in chronology ]
pay
[ link to this | view in chronology ]
Bizarre? You am in da USofA!
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.
[ link to this | view in chronology ]
Soylent Horses
think horses are people. ;>)"
Horses are made of people.....PEOPLE!!!
[ link to this | view in chronology ]
What about ASCAP's members?
[ link to this | view in chronology ]
You still can
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).
[ link to this | view in chronology ]
I smell a conspiracy here....
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.
[ link to this | view in chronology ]
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"?
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
The "adult entertainment" industry, of course! And they'll want royalties too!
[ link to this | view in chronology ]
What about humming?
[ link to this | view in chronology ]
how about defining 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!!
[ link to this | view in chronology ]
Balderdash, poppycock. (Britsh derision, don'cha know)
[ link to this | view in chronology ]
Ring tones are evil
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.
[ link to this | view in chronology ]
What?
[ link to this | view in chronology ]
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.
[ link to this | view in chronology ]
Pity ASCAP
[ link to this | view in chronology ]
i love chatting
call to chat!!!
718-541-5862
[ link to this | view in chronology ]
ASCAP & BMI Killing Music Venues Across The U.S.A.
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.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
FYI
[ link to this | view in chronology ]
F*CK 'EM!!!
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!
[ link to this | view in chronology ]
Care
During my research on your writing, I found a website that offers free music for my phone, including categories like Pop, humor, games, nokia, samsung, Iphone. , etc. You can download it at https://sonneriepro.com/ to set free phone ringtones.
[ link to this | view in chronology ]
Good
Talking about the theme of ringtones, there's so much more to say. If you really love ringtones, you can visit: https://sonnerieportable.com/ to listen and download many of the best ringtones.
[ link to this | view in chronology ]
I really hate the default phone ringtones. It's boring and monotonous. I like to use funny sound effects ringtones or my favorite songs as ringtones. Whenever a call comes in, the ringtone goes off, I feel relaxed. You can download the best ringtones here: https://japanringtones.com/
[ link to this | view in chronology ]
They should be paying US for promoting their music. Visit: <a href="https://mp3ringtones.info/">https://mp3ringtones.info/</a> to listen and download many of the best ringtones.
[ link to this | view in chronology ]
They should be paying US for promoting their music. Visit: https://mp3ringtones.info/ to listen and download many of the best ringtones.
[ link to this | view in chronology ]
I found a website that offers free music for my phone: https://downloadringtonesfree.mobi/
[ link to this | view in chronology ]
To be free to install all songs as ringtones for you can access here https://msonneries.com with the best and newest 2021 genres comfortable for you to choose.
[ link to this | view in chronology ]