Thursday, July 2, 2009

Focus On Ringtone Case Intensifies

High-tech advocacy groups this week filed a friend-of-the-court brief opposing efforts by music licensing organization ASCAP to impose additional licensing payments on providers of musical ringtones for mobile phones. The Center for Democracy and Technology, the Electronic Frontier Foundation, and Public Knowledge urged a New York federal court to reject ASCAP's claim that ringtones are "public performances" under copyright law simply because a phone may ring when the user is in a public place. ASCAP's position implies that mobile phone users are copyright infringers and would expand liability in ways that could chill innovation in products far beyond the relatively narrow context of ringtones, the groups argued.

ASCAP, which has about 360,000 members, recently released a memo in support of its legal battle against AT&T and Verizon that argues wireless carriers make billions of dollars from ringtones including per tone charges and multiple additional charges surrounding the transmission of ringtones. The revenue generated is "more than sufficient to cover a reasonable payment to ASCAP members," the organization said. Additionally, ASCAP stressed that it seeks to license carriers' transmissions of music and is not trying to charge consumers. EFF attorney Fred von Lohmann called ASCAP's an "outlandish argument," noting that under its reasoning, someone playing a car radio with the window down would be violating copyright law.

A related debate could play out on Capitol Hill. In a recent recent letter, songwriter and music publisher representatives requested legislation to expand the scope of the public performance right so that it will apply to digital downloads of audiovisual works. Trade groups representing Internet music providers, e-commerce firms and electronics manufacturers claim the effort would "impose a licensing obligation and potentially significant royalties on activities that are unequivocally unrelated to public performance." House Judiciary Chairman John Conyers is planning a hearing on the issue while Senate Judiciary Chairman Patrick Leahy has begun talking with stakeholders.