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ASCAP Wants To Be Paid When Your Phone Rings
gerddie notes a piece up on the EFF site outlining the fairly outlandish legal theories ASCAP is trying out in their court fight with AT&T. "ASCAP (the same folks who went after Girl Scouts for singing around a campfire) appears to believe that every time your musical ringtone rings in public, you're violating copyright law by 'publicly performing' it without a license. At least that's the import of a brief (PDF, 2.5 MB) it filed in ASCAP's court battle with mobile phone giant AT&T."
I'm an independent musician, and hate the RIAA, but ASCAP is more of a musician's union than anything else. They are one of the only groups that truly helps artists get paid for their work, in situations where money is already supposed to be set aside for the artists themselves. I have made a fair bit of cash in royalties from tracks that have appeared on networks like VH1 and A&E -- that is money that would have never been reported to me otherwise. If some network wants to use my track in some show, and generate advertising money off of it, then I think the artist deserves their rightful share. FYI: I am not signed to a major label, and I don't have the resources or connections that those acts have. They also help in situations such as radio reporting in places where I don't even speak the language -- as one example, they discovered my music playing on a commercial radio station in eastern Poland, and were able to retrive the royalties I had earned.
So, please don't instinctively tar them with the same brush as the idiots at the RIAA. I don't agree with everything ASCAP does, but in general they are a positive force for trying to help the actual creators of content, not the big labels and corporations.
In the hypothetical boom-box situation then the music is being further transmitted (as sounds waves in the air) to the public. Ergo,
No. Further transmission is retransmission, as defined in section 101 and clarified in the committee notes. "Sound waves" in the air are not transmissions; a loudspeaker is not a transmitter.
This is further clarified by Fortnightly Corp. v. United Artists, 392 U.S. 390, and Twentieth Century Music Corp. v. Aiken, 422 U.S. 151.
Please stop with the outlandish displays of ignorance.
Offtopic and a little trollish: This lack of distinction at the low end actually got the U.S. in a bit of trouble at the WTO
No, not strictly true. If you read the WTO decision, 110(5)(A), the section I quoted, was upheld as a valid exception to the Berne/TRIPS Art. 11 rights.
110(5)(B), which is the more complex exception passed by the small business lobby and the expanded codification of the Aiken rule, was the portion that the US lost. This is all found in the WTO Panel Report, DS/160/R.
Rather than changing the law (which Congress doesn't want to do), the United States agreed to make a lump-sum payment
No, the terms of the settlement do indeed require the United States to change its domestic law to comply with its international obligations. The US to date has not done so.
Maybe it is because the small business owners ask more nicely.
It's because the small business lobby isn't deluded and scattered into shooting themselves in the foot left and right. The progressive copyright lobby groups exist, but they do not support complete abolition, and Slashdot's membership does its very best to torpedo every proposed change and submitted bill for reform, including proposals for personal use exemptions, revised statutory damages for P2P infringements, and statutory codification of LOC exemptions. In that respect, the RIAA/MPAA and Slashdot are a united front.
It's a tricky issue. That said, ASCAP's position in this case seems to be utter crap in a lot of ways. For example, they claim that ringtones are streaming because like streaming, "AT&T maintains a continuous connection to your phone." Of course, none of the audio data is sent through that connection, which makes it decidedly not streaming. They're trying to twist this after having their backsides handed to them in another case in which music downloads were declared to not be a public performance.
However, this case is not really about whether ringtones are a public performance. This case is because AT&T has been selling ringtones at extortionate prices under the premise that it covers a public performance license, but has never paid those licensing fees for all those ring tones. They've been pocketing the extra money above and beyond the usual cost of a digital music download. If you ever needed proof that AT&T are a bunch of leaches, you now have it. In order to bring this case to court, though, ASCAP has to get the courts to agree that AT&T triggering music that they explicitly sold as a ringtone constitutes a public performance by AT&T. That's a very tricky legal issue. They're right that it isn't the same as a download the moment AT&T triggers it. AT&T is also right that it isn't streaming.
Ultimately, I suspect the courts will rule that it is public performance, but that it is public performance by an individual, at which point ASCAP will likely drop the issue. However, that will also open up AT&T to lawsuits by consumers who have been fraudulently overcharged for ringtones under the false belief that they were licensing the right to its use in a public performance. Either way, AT&T is potentially screwed because they didn't pay those fees. If, however, the courts rule that triggering the performance of a musical work constitutes public performance, then AT&T is screwed solely because they sold the music that was being used as a ringtone. In that case, AT&T would be legally better off opening up the phones for users to put in any arbitrary audio file as a ringtone. That way, at least in theory, they cease to be culpable.
Either way the decision goes, there's next to no chance that this will impact the consumer in any significantly negative way, and a decision against AT&T might actually encourage them to open up their phones more. This is strictly a lawsuit filed by ASCAP against AT&T for breaching contracts by selling ringtones and then pocketing the licensing fees. Nothing to see here. Move along.
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I got an email from ASCAP on this, since I am a member...
Whether you are someone that is just starting out, struggling to get your music heard or an accomplished music creator with an extensive catalogue, nothing we do is more important than advocating for your copyrights and the livelihood that they can provide. No other performing rights organization is advocating across such a comprehensive platform as ASCAP, from legislative efforts in Washington to copyright education in American schools. Additionally, we've brought a dozen legal actions with digital companies whose business models do not include fair payment for the use of your music.
You may see or read accounts of our legal actions from those arguing to limit your potential income. Not surprisingly, they misstate our efforts on your behalf. When it comes to the wireless carriers and ASCAP, here are the facts:
* ASCAP is in Federal Rate Court with the two largest U.S. wireless carriers. We are seeking to ensure that they pay you a share of the substantial revenue they derive from content using your music. This includes the delivery of full track songs, music videos, television content, ringtones and ringback tones.
* All this content generates revenue for the carriers, whether sold a la carte or on a subscription fee basis or bundled with voice, data and messaging services.
* With respect to ringtones, ASCAP seeks to license the wireless carriers' transmissions of your music. ASCAP is not seeking to charge consumers. In fact, ASCAP has been licensing wireless carriers and ringtone content providers since 2001. Now, the carriers want to avoid that payment.
* Wireless carriers make billions of dollars in a variety of ways from ringtones including per tone charges and multiple additional charges surrounding the transmission of ringtones. These billions are more than sufficient to cover a reasonable payment to ASCAP members and to allow the carriers an ample profit margin.
* Bottom line, we are striving to license those that make a business of transmitting your music. This holds true for any medium where businesses have been built on the back of your music, whether terrestrial broadcast, satellite, cable, Internet or wireless carriers providing audio and video content. To be completely clear, our approach has always been to license these businesses, not to charge listeners.
As ASCAP approaches the mid-point of 2009, we are gratified that more people choose membership in ASCAP than any other American performing rights organization. Nearly 100 new members are elected every day bringing our total membership to 360,000. Unlike the other U.S. performing rights organizations, we are a membership organization. As such, we have an obligation to represent all members in the pursuit of fair compensation for the use of their music.
It really skirts around what's actually in the briefing. Basically ASACP is claiming that because AT&T controls the distribution, use, and "performance" (by triggering the ringtone when a call comes in) that they are responsible for public performance royalties.