ASCAP sues AT&T over ringtone “performances”

When a cell phone starts blasting “In Your Face” by Lil’ Wayne, bystanders might consider it annoying, but the American Society of Composers, Authors and Publishers is taking it one step further and calling it a violation of copyright law. According to a filing obtained by the Electronic Frontier Foundation (EFF), the performance rights organization has filed suit against AT&T (NYSE:T), claiming that every time a musical ringtone goes off in public, the song constitutes a performance and, therefore, violates copyright law.

ASCAP’s quest against the Girl Scouts might not have stopped them from singing around the campfire, but it thinks it has a better shot against wireless carriers. The group filed a civil action suit in the US District Court in southern New York after it has been licensing content to carriers and content providers since 2001. Both carriers and mobile content providers already pay a licensing fee to songwriters and publishers for each ringtone a consumer downloads, but ASCAP is alleging that additional royalties are owed when these same ringtones publically perform – i.e. ring in public.

Essentially, every time a call is made, ASCAP says that AT&T creates a joint liability with its customers - even though they both already paid for that song, AT&T can’t control when the call is made and the customer chooses between a silent or ringtone mode.

The music industry has struggled to gain a strong foothold on mobile, in part because of issues like licensing fees and the lack of a reliable business model. Within music though, ringtones have historically been one of the best – if not only – revenue-generating outlets. Ringtone sales did take a hit in 2008, but Juniper Research predicts they will reach nearly $14.6 billion by 2013 – profits of which the EFF says ASCAP doesn’t stand a chance of getting.

The EFF likened the issue to listening to the car radio with the windows down. Even if it was a public performance, the Copyright Act has a specific exception that covers performances made “without any purpose of direct or indirect commercial advantage.” That should take care of ringtones going off in the restaurant, the EFF said.

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