Apple, the RIAA, and Ringtones

pilsner.urquell writes "Apple's interest in defending the rights of the consumer has cost them a lot of grief in the ringtone market. 'John Gruber of the Daring Fireball cites Engadget, which reported that the RIAA wanted to be able to distribute ringtones of its artists without having to pay them big money to do so. It won a decision last year before the Copyright Office saying that ringtones weren't derivative works, meaning they didn't infringe on the copyright of the songwriter.' The piece goes on to explain the tense relationship between Apple content holders regarding ringtones and other pieces of IP, such as in the recent withdrawal of NBC."

Comments

I never knew copyright law was THIS broken

[jonwil]

Playing an audio file from your phone through speakers requires different permissions than playing the same audio file from the same phone through the same speakers in response to a phone call event... How screwed up is that?

Re:I never knew copyright law was THIS broken

[ArCh3r]

You are new to this country I see.

Re:I never knew copyright law was THIS broken

[Professor_UNIX]

Pretty soon we'll need to buy one DVD per DVD player and they'll have some kind of activation thing where the first time you play it ties it to that DVD player if we keep going down this road.

Re:I never knew copyright law was THIS broken

[Zontar The Mindless]

Pretty soon we'll need to buy one DVD per DVD player... Sssshhhhh!! They'll hear you...

Re:I never knew copyright law was THIS broken

[pushing-robot]

Pretty soon we'll need to buy one DVD per DVD player and they'll have some kind of activation thing where the first time you play it ties it to that DVD player if we keep going down this road.

I remember that.

Re:I never knew copyright law was THIS broken

[phoebe]

My Sharp SX633A follows through with this, it supports Mp3/AAC/AAC+/MPEG4,3GP audio file/container formats but only the polyphonic 3GP can be used for the actual ringtone. The vodafone website graphic even lists "MP3 ringtone" support, but in fact its only for playback as music, not as an actual ringtone for the phone. Utterly retarded.

Re:I never knew copyright law was THIS broken

[Drathos]

You must not have used a Verizon phone before. Even if the phone itself is capable of playing any old mp3 as a ringtone, Verizon specifically disables this so you have to buy ringtones through their service.

Re:I never knew copyright law was THIS broken

[Mr2001]

Even if the phone itself is capable of playing any old mp3 as a ringtone, Verizon specifically disables this so you have to buy ringtones through their service. Well, they don't make it easy, but you can still put your own ringtones on. All you have to do is get a USB cable for the phone and download BitPim, which can easily manage ringtones and/or directly edit the filesystem for most VZW phones.

If you don't want to do that, you can even email the ringtones to your phone (your 10 digit number @vzwpix.com), although MP3s will be converted to QCP in the process and lose some quality, and you'll be charged 25c for the message unless you have a picture messaging plan.

Re:I never knew copyright law was THIS broken

[CastrTroy]

That feature may have been disabled by your cellphone provider. Cell phone providers do this stuff all the time. They disable the ability for you to load your own content onto the phone, so they can sell you the content. From what I understand, they make pretty good money doing it. What I would wonder is, if they provided the means for doing it, and actually provided a website with tons of content, couldn't they make more on ads on that website, as well as increased user base? They could also have related purchases. So if you buy th latest ringtone by the backstreet boys, they could also try to sell you the CD, or the actual song. Maybe free ringtone with the purchase of an album. Seems like a much better way to manage the thing than charging $3.00 for a ringtone or $1.50 for a 320x240 wallpaper for your phone. I guarantee that every 13-19 year old would immediately switch to that phone company if the air time was still at competitive rates.

Re:I never knew copyright law was THIS broken

[Lepton68]

Here is the thing: DON'T make separate ringtone files. Have the ring play the orginal file, the full song you have on the phone for listening to as music. You can set a portion of THAT file to play, you can set it to fade in and out, and to play when someone happens to call. Why do this? Because you don't need any new rights to do it. You already bought the rights to play that song. And you can play any part of that song you want, when you want. You are simply automating the process.

Do this, Apple, and there is no basis for charging for a ringtone, no need to negotiate rights to a ringtone, or anything else. Because it isn't a ringtone. It is the original song you have already obtained rights to play as you like. Yes, there will be a lawsuit. But that's how you defend it.

Entertainment Cartels Want it All

[Apple Acolyte]

They want to have their revenue cake and eat it too, and they don't even want to cut the original authors in. They are an unnecessary drain on the digital marketplace, a dinosaur of the 20th Century. Eventually these cartels will be replaced, since the goods they offer have little compelling reason to be sold in physical formats. It's a just a question of time before key producers decide it makes sufficient financial sense to bypass them completely.

Re:Entertainment Cartels Want it All

[CastrTroy]

Maybe Apple needs to be dealing with better record labels. eMusic sells songs for about $0.30 a song. Half goes to the artist/label, and half goes to eMusic. They're probably making more per song than Apple is. And the artists, because they are indie labels, are probably getting more per song too. And the customers are getting more songs for their money. That's what a song should cost. Although a song for a quarter would be nice. Make the purchase an non-decision. If you like it download it. With songs costing $0.99 they make me stop and think about whether I want to buy the song or not, same with CDs for $15. If things were priced cheap enough, like $0.25 for a song, or $5.00 for a physical CD, then people would just buy everything they like, instead of having to decide whether or not the purchase is actually worth it. I've spent more money on eMusic in the past year than I spent on CDs in the past 5 years, because I actually feel like I'm not being ripped off.

So, it's free?

[Carewolf]

If a song as a ringtone isn't a derived product, and RIAA can makes ringtones of popular music without infringing the copyright of the artists that means we (anyone) can also make our own ringtones of popular music without infringing anyones copyright...

Re:So, it's free?

[Carewolf]

Answering my own comment after RFTA:

Derk Nek of Epplegacks explained that--unfortunately--what the RIAA actually won in the case cited by Engadget was instead the right to collect money for ringtones without distributing those fees to the artists they represent. There was no establishing that ringtones are not protected intellectual property, so the RIAA will continue collecting royalty fees, because distributing songs or portions of songs requires mechanical rights. Playing a ringtone might also--in the mind of the RIAA and the letter of the law--require performing rights.

Though it doesn't get any less fucked up by this explaination.

Wait, they own what?

[Aladrin]

Since when does the RIAA own the copyrights to anything? How can they possibly collect money on copyrights they don't own if they aren't representing the copyright owner?

According to TFA, they won a decision not in court, but simply at the Copyright Office. I don't see any links to this decision itself, and I don't have time to search for it with the insignificant amount of information we are given, so I don't have any idea what this actually says... But I can't see how the Copyright Office is able to give distribution rights other than the information that something is or is not covered under copyright law. They cannot say it's not copyrighted and then authorize the RIAA to collect money, and they can't say it's copyrighted and give the RIAA permission to ignore it and not pay the copyright owner.

Anyone got any more -real- information, instead of just a link to site that links to a site that claims something that isn't cited at all?

Re:Weird, that

[EvanED]

No, the submitter either didn't RTFA or felt like being misleading. Engadget did report that, but they were wrong, as the article explains in the very next paragraph:

Writing about Apple's iTunes ringtones, John Gruber of the Daring Fireball cited Engadget, which reported that "the RIAA wanted to be able to distribute ringtones of its artists without having to pay them big money to do so (surprised?), and it won a decision last year before the Copyright Office saying that ringtones weren't 'derivative works,' meaning they didn't infringe on the copyright of the songwriter."

Engadget, known for shooting from the hip rather than the brain, didn't really understand whole story. From its report, Gruber concluded, "So if you have the right to play a song, you have the right to use it as a ringtone on your phone."

Gruber blamed a "complicated, confusing mess of a ringtone policy" on Apple, and suggested the company should have simply handed out tools to create ringtones from any users. Incidentally, that's apparently what Apple was going to do back in January.

Derk Nek of Epplegacks explained that--unfortunately--what the RIAA actually won in the case cited by Engadget was instead the right to collect money for ringtones without distributing those fees to the artists they represent. There was no establishing that ringtones are not protected intellectual property, so the RIAA will continue collecting royalty fees, because distributing songs or portions of songs requires mechanical rights. Playing a ringtone might also--in the mind of the RIAA and the letter of the law--require performing rights.

Defense?

[ratboy666]

Your honour, I was just distributing high quality ring tones, produced by converting audio CD into mp3 format, and, as has been argued by the RIAA, the ring tones are not derivitive works; therefore no copyright violation has occurred.

We argue estopel, and the defense rests.

Ringtones - the most important thing in the world?

[clarkkent09]

I just googled "ringtones" and it came up with 112 million results. Going by the first 3-4 pages, most of them seem to be either selling or offering "free" ringtones. Some comparisons:

bread: 78 million
oxygen: 91 million
global warming: 80 million
world peace: 2.8 million
liberty: 95 million

But, fortunately:

beer: 128 million

Whew... close

nice job Slashdot

[crayz]

Article summary quotes text that is then shot down a paragraph later as incorrect. Try this instead:

Ask Not For Whom the Ring Tones.

Writing about Apple's iTunes ringtones, John Gruber of the Daring Fireball cited Engadget, which reported that "the RIAA wanted to be able to distribute ringtones of its artists without having to pay them big money to do so (surprised?), and it won a decision last year before the Copyright Office saying that ringtones weren't 'derivative works,' meaning they didn't infringe on the copyright of the songwriter."

Engadget, known for shooting from the hip rather than the brain, didn't really understand whole story. From its report, Gruber concluded, "So if you have the right to play a song, you have the right to use it as a ringtone on your phone."

Gruber blamed a "complicated, confusing mess of a ringtone policy" on Apple, and suggested the company should have simply handed out tools to create ringtones from any users. Incidentally, that's apparently what Apple was going to do back in January.

Derk Nek of Epplegacks explained that--unfortunately--what the RIAA actually won in the case cited by Engadget was instead the right to collect money for ringtones without distributing those fees to the artists they represent. There was no establishing that ringtones are not protected intellectual property, so the RIAA will continue collecting royalty fees, because distributing songs or portions of songs requires mechanical rights. Playing a ringtone might also--in the mind of the RIAA and the letter of the law--require performing rights.

Re:Weird, that

[GeckoX]

What we need is for the Artists to revolt against this. It goes way way too far. They already get screwed by the MAFIAA, and now the MAFIAA got a legal standing that they are allowed to make money off of the artists work, but have no obligation to pay the artists.

These assholes, in theory, are supposed to be working FOR the artists. The ONLY reason the MAFIAA exists in the first place is because of the artists...No artists...No music...No money to collect royalties for.

The MAFIAA needs to be taken out back and shot. It's the humane thing to do after all.

Another great article and consumer's rights

[pbooktebo]

One thing the article doesn't cover is the fact that consumers have a legal right to "make their own" ringtone from music they own. According to this article by Sasha Frere-Jones in the New Yorker, consumers can create their own ringtones from music they own legally:

"Or you can do it yourself: some new cell-phone models can be connected to a computer by a data cable, allowing you to create master tones from MP3 files at home. However it is done, transferring music that you own to your phone is legal under copyright law."

source: http://www.newyorker.com/archive/2005/03/07/050307crmu_music
By the way, this is one of the best articles on ringtones, covering the technical advances from monophonic MIDI to compressed audio, and the impact on the aesthetics of ringtones. I teach a class on music technology, and the first assignment is to have students compose and create their own ringtone (not by ripping from a CD, actually creating their own). I use the New Yorker article to get everyone up to speed on how big ringtones are in the world today.

Re:Derivative

[*weasel]

Yes, No.

If a ringtone isn't a derivative work, then yes, we can make them all we want (provided we have a legit copy of the song to start with). But no, we can't distribute them, for the same reason we can't distribute the original song. Their not being derivatives doesn't mean they aren't covered under copyright, it just means they're covered under the original song's copyright. The RIAA liked this, because it meant they could whore out any track they had mechanical rights to, as ringtone fodder, without having to renegotiate anything with the artists.

Tabs are different because they're a separate fixed form (written vs recorded) reproduced in whole (vs a slice of the original recording); it's the same for sheets in general and lyrics. (something the RIAA has been slow to come down on, but it'll happen. Just as soon as they figure out how to monetize a lyrics database.

Also, I would like to say that the concern about performing rights is a joke. Sure, performance rights have been used by ASCAP to shake down businesses that play music for their customers and the occasional giant outdoor party. (e.g. annual block party) But the idea that someone would use a 30 second ringtone to 'perform' a song for an audience is absurd on its face.

The purpose of the ringtone is to be heard by the phone's owner. In the bizarre edge cases where people make ringtones of entire songs and play them, on purpose, to entertain a crowd is no different than people using an ipod, boombox or music-playing phone to do the same, right now. There is clearly no need to cut ASCAP in on all ringtone sales for the same reason there is no need to cut them in on all CD sales. ASCAP is likely just so used to getting whatever they want with a nasty legal brief or two that they honestly think it's worth their lawyers fees to take a shot.

Re:Weird, that

[GeckoX]

Yes, but at whose choice?

It's one thing for an artist to decide they do not want their music for ringtones...agree or not, it is their right.

But that has nothing to do with the MAFIAA making money off of ringtones without paying the artists. This has nothing to do with whether ABBA is willing to allow their music to be used for ringtones or not.

Wrong

[SuperKendall]

Blu-Ray does not support any technique that can lock content down to a unique instance of hardware, not even BD+ can do that.

Also largest non-DRM

[SuperKendall]

You're talking about the same Apple that happens to be the world's largest seller of DRM-infected music, right?

Yes, and also the worlds largest online seller of DRM Free music.

Your point?

Re:Also largest non-DRM

[Wakko Warner]

Of course, someone was going to point out the DRM-free canard. Thanks for taking the initiative. You left out the fact that about one percent of the 5 million songs available on iTunes are DRM-free. You also left out the part where Apple secretly embeds user information in the DRM-free tracks.

Copyright and Ringtones

[stevewahl]

First, IANAL. But I do pay close attention to copyright laws, they affect all of us.

Second, the ruling on ringtones not being a derived work: it probably means that the ringtone is just another mechanical copy of the song, for which the record labels would have to pay whatever fee they've already negotiated with the artist in their current contracts, instead of being a derived work of a different sort which would require new negotiations with each artist.

I know that's not what the article says, and I haven't researched it. But it's what makes sense. (Yeah, yeah, since when does making sense have anything to do with copyright law?)

Third, if you have a song on your phone and a ringtone, the ringtone is kept in a separate file. It is a copy of the song, subject to copyright laws (because you've made a copy). This is necessary because the ring mechanisms in the phone always play the whole file, from the begining.

What we need instead is phone ringers that will use an existing, full length song file, but start playing at an offset into the file, and only play part of the file. Then you only need one file on the phone, and the whole question of paying twice is moot.

Re:Weird, that

[Mister Whirly]

"If you have an Abba song as ringtone, you are probably breaking the law."

Yes, the laws of GOOD TASTE!

Re:Weird, that

[Mister Whirly]

Yeah, and they could call it "Apple Corps Ltd." and start a division called "Apple Music". I'm sure nobody would have a problem with that. Oh, wait...

Ringtones are retarded anyway

[Stormwatch]

Why don't people have phones that sound like real phones? You know... RRRRRRING RRRRRRING. Not a crappy-sounding excerpt from some badly composed, poorly played, awfully sung, insanely overcompressed piece of noise that passes as music these days... NOW GET OFF MY LAWN!