A few months ago, the American Society of Composers, Authors and Publishers (ASCAP), a music industry licensing group, took Verizon and AT&T to court over the carriers’ use of musical ringtones on their devices. Not just random notes used as ringtones, but actual songs produced by music industry artists. ASCAP claimed that every time a cell phone user’s phone rang, blaring an artist’s song, it was a copyright violation. The group demanded that wireless carriers pay for public performance licenses, in addition to the fees cell phone companies already pay in order to offer song ringtones to their customers. The carriers disagreed, and now a New York district judge has sided with them.
More specifically, the judge sided with Verizon, whose case was the first to be heard. ASCAP claimed Verizon was liable for copyright infringement at two separate times—when a song ringtone was being downloaded, and during incoming calls.
The judge ruled that Verizon was not liable when a ringtone is being downloaded because the song does not actually play during the download process. The judge also ruled in Verizon’s favor regarding ringtones playing when a call is received because it does not constitute a performance.
That is the key to the entire case. ASCAP’s main claim was that every time a cell phone played a song ringtone, it was a public performance, and required payment to the artist and label responsible for that song. But the judge referred to the Copyright Act which makes exceptions for songs played in small social circles.
For example, if you buy a CD and play it in your home where friends or family are present, you are not required to pay a licensing fee because it’s not a public performance. You are not receiving any profit from playing the CD in this manner. The judge ruled that a ringtone is essentially the same thing. A cell phone user who downloads a song ringtone does not profit in any way every time the phone rings, therefore, it is not a “performance.”
In addition, the judge stated that every time a ringtone plays, Verizon is not actually “performing” the music played by a device, and as such, is not liable to pay any licensing fees for it.
This is not only a victory for Verizon, but for consumers. If the judge had ruled in ASCAP’s favor, Verizon would have had to pay millions, possibly up to a billion dollars in retroactive fees. In order to pay those hefty fines, it stands to reason they would have passed the cost on to their customers, presumably by raising the cost of ringtone downloads, among other things.
ASCAP has a similar case pending against AT&T, but if the ruling in Verizon’s case is any indication, ASCAP will again come away empty handed.
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