If the American Society of Composers, Authors, and Publishers (ASCAP) has its way, each time your ringtone sounds in a public place, it is a public performance and, assuming you didn’t pay a royalty (a good assumption), you have violated copyright law.  That’s the claim made by ASCAP in responding to AT&T’s Motion for Summary Judgment filed in a federal court action over license fees.

ASCAP argues that there is no question that the performances that AT&T causes are “public,” regardless of whether some customers’ phones may sometimes be switched to vibrate, turned off or located in the home. According to ASCAP for a ringtone performance (and here, focusing on the time when the phone plays) to be a public performance, it need not be received by the public every time. A transmission or other communication is made “to the public” if it “is capable of reaching different recipients at different times, as in the case of sounds or images stored in an information system and capable of being performed or displayed at the initiative of individual members of the public.” H.R. Rep. No. 90-83, at 29 (1967). It need only be “capable” of being performed to the public; whether the ringtone is set to play, and indeed whether anyone hears it, is of no moment.

Now, millions of cell phone users have purchased musical ringtones.  Presumably, a portion of the cost is a license fee for the purpose of playing the ringtone.  Yet, ASCAP argues that the phone carriers must ante up even more money to pay for all those public performances.  In an effort to introduce a reality check to the proceedings, the Electronic Frontier Foundation filed an amicus brief, which pointed out that copyright law does not protect public performances “without any purpose of direct or indirect commercial advantage.”  The notion that millions of cell phone users are breaking the law when their phones sound in a restaurant is just ludicrous according to EFF Senior Intellectual Property Attorney Fred von Lohmann, who is also quoted as observing that taken to its logical conclusion, ASCAP would find each person who plays his car radio with the windows rolled-down guilty of copyright infringement.

A quick review of the Copyright Act suggests that the EFF is correct.  Interestingly, there is little case law on the subject and none that addresses a similar issue.  It will be interesting to see what the court decides.  Surely, it won’t make us pay each time our cell phone rings?  Or will it?  To see the full articles visit the EFF website .

–Adam G. Garson, Esq.