Sorry ASCAP, A Ringtone Is Not A Public Performance

from the nice-try-though dept

Thu, Oct 15th 2009 3:37pm — Mike Masnick

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

17 Comments

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william (profile), 15 Oct 2009 @ 3:25pm

I tried to come with some clever comment, but I couldn't. Why? Because this is such a clear cut case that nothing really could be said about it.

Now, what I could comment, is the sad state of the American legal system/culture/environment and ASPCA/BMI/RIAA/MPAA...

1) The court system is in such a sad state that we ACTUALLY have to WORRY about the court making a wrong decision in this kind of clear cut and basic frivolous case. Either the court's judges' intelligence has dropped so low or that judges' corruption has cause us to lose most of the faith in our legal system (can't rule out both reasons are valid) What would happen when the day comes that we put judges on the same level as lawyers?

2) The industry environment is in such a sad state that they would do anything, ANYTHING to try to squeeze pennies out of consumers. How dumb are these people not realizing all these actions just cause people to lose respect and for some people, the anger drives them to commit copyright infringement? (those ******s! I would never pay them anything attitude). Either that or they think we, the general public and consumers, are idiots who believer everything they say.

Of course, in this case we see a dog biting another dog, and it's very entertaining. Hey, here is the news, we are much more empowered now by new technology and new communication methods. The days where you can just steamroll us, your paying customers, are over. OVER I SAID.
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Brian (profile), 15 Oct 2009 @ 3:43pm

But Mike, those collection people across the pond get to charge users for playing the radio for themselves and their horse so why shouldn't the ASCAP get to do something for ringtones here?
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Anonymous Coward, 15 Oct 2009 @ 3:47pm

What? But it *IS* public!!
Damn.

Record Producers everywhere are scrambling to find a way to pay the mortgage on their third house on the Tetiara Atoll.

Here's a hint: SlimThug's Music Video "Still The Boss" has some good ideas and answers, including clipping coupons.
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Ben (profile), 15 Oct 2009 @ 4:04pm

Common sense prevails
Hurrah!
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thublihnk (profile), 15 Oct 2009 @ 4:15pm

Uh, Mike, I gotta say, you're wrong on this one.

Dead serious, the way I make a living is just sitting around, downloading ringtones, and playing them on my crappy little phone speaker on the street so that people will give me spare change.

I make the mad duckets, yo. It's good to be the king.
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Jesse, 15 Oct 2009 @ 4:22pm

Who cares about commercial advantage anyways? Why shouldn't I be allowed to play the radio at my business when royalties were already paid by the station? If I pay for a CD, I'm paying royalties there...why do I need to pay again to play it on the stores sound system?

They should charge speaker makers too. Afterall, speakers are being used for public performances.
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Joe Szilagyi (profile), 15 Oct 2009 @ 4:29pm

I'm in a car
Wouldn't this be the equivalent of

1. I buy a CD or iTunes or album.
2. I play the music in my car loudly.
3. I roll down the windows of my car.
4. These people demand I pay... again, for the mobile public performance?
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Anonymous Coward, 15 Oct 2009 @ 4:33pm

Re: I'm in a car
I'm relatively sure they've already tried to do that.
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Anonymous Coward, 15 Oct 2009 @ 4:41pm

the radio station is making the performance, radio signal is analog, All your receiver is doing is taking that signal and slowing it down from radio waves to sound waves.

You should never have to pay for something over the air.
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Mike Masnick (profile), 15 Oct 2009 @ 5:15pm

Re:
Dead serious, the way I make a living is just sitting around, downloading ringtones, and playing them on my crappy little phone speaker on the street so that people will give me spare change.

I stand corrected. :)
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..., 15 Oct 2009 @ 5:51pm

Re:
"in this case we see a dog biting another dog, and it's very entertaining."

michael vick - is that you?
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RockDJ, 15 Oct 2009 @ 6:36pm

SPCA/BMI/RIAA/MPAA Are Obsolete
What the RIAA / BMI /MPAA / IFPI et al don't realise is that they are no longer the gatekeepers / distibutors. the old way of doing things is getting eroded everyday by technology. When they had the power they used to charge riduclous amounts for CD's. Even after they had screwed everybody they still charged $30 a disc. then the internet came along and the rest as they say is history. They want to get back to the day where they charge $30 a disc. They don't realise technology is evolving every year and it is getting better, faster and cheaper. artists are now making their own music they don't need $20,000 or $30,000 to make a record and distribute it. They don't need the marketing machine of the Industry. They don't need to press CD's to get their music out there. the genie is out of the bottle, they can try to buy congress and laws that favour them. But technologies march is always moving, just when they think they have found a way to control it, it slips out of their hands. we are witnessing the dying days of an old industry. It's going to be long and slow but when it's done we will be better for it.
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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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Anonymous Coward, 15 Oct 2009 @ 9:18pm

maaaan I'm one of the "bunch" that sent this in. I would like a "thanks so and so, so and so, so and so.. :)

It's petty I know.. but I have very little to look forward to everyday that I wake up and realize that I'm not dead.
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Marcel de Jong (profile), 16 Oct 2009 @ 2:01am

A case of double billing?
You already pay through the nose for a ringtone (no I do not think that a 3 euro a week subscription plan for 3 ringtones is cheap, when the full song is 0.99 in Itunes)
So why do we have to pay again in order to have your phone go off?!
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Wise One, 19 Oct 2009 @ 8:51am

Sorry ASCAP, A Ringtone Is Not A Public Performance
More and more such cases will continue to clog US court dockets until our courts become more like those outside the US -- assessing hefty "costs" against the losing party, in favor of and payable to the winning party. Only then will the frivolous lawsuits abate.

VRP
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Matt Gray, 19 Jan 2010 @ 2:23pm

Ringtones and public performance
Highly disagree with the ruling. If a song is played on the phone, one that you've created, you should get a royalty from the performance as a writer. If a song is played on the internet a kajillion times, you should get royalties from those performances. That's how songwriters get paid. People want to be entertained but they don't want to pay the price for entertainment anymore. You know what it reminds me of? All the freebies that were given out to media so they would review the product. The artist is not getting paid for those cd's that are being sold to used cd shops- however, they are getting free publicity. So the question is: Is a ringtone considered, by the eyes of the law, free publicity? I don't think it is because those ringtones are being bought and a third party is making money from the purchase of the ringtone. Writers ARE being shortchanged here and perhaps all the songwriters, every musician who needs income to survive should go on strike and the writers should take back all their songs so nobody can enjoy music anymore. That's not a great idea but man, where would we be without songs? We'd all be freaking out from the chaos that would create. A songwriter needs to be paid for his or her art. That is the bottom line. That's what royalties do- supply income to be able to feed their families. I call shenanigans on Congress. Thanks, jerks!
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