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."

Comments

What about radios, etc?

[BitterOak]

Does this mean if I have a radio with speakers in a public place I need to pay some kind of fee? I know that businesses which have radios that their customers can hear pay a license fee, but what about people, say, on the beach listening to a boom box? If they don't have to pay a fee, why should people with cell phones or their providers pay a public performance fee?

Re:What about radios, etc?

[mr_matticus]

Yes, it does.

No, it doesn't.

From 17 USC 110(5):
[The following is not an infringement:] except as provided in subparagraph (B), communication of a transmission embodying a performance or display of a work by the public reception of the transmission on a single receiving apparatus of a kind commonly used in private homes, unless--
(i) a direct charge is made to see or hear the transmission; or
(ii) the transmission thus received is further transmitted to the public;

Their situation is no different. The law doesn't distinguish between a business playing the radio and any other person playing the radio

Sure it does, beyond a certain point. At the low end of the spectrum, there's no need to make such a distinction, because all parties are exempt who follow the rules.

Once again, faulty and idiotic legal interpretations from the ignorant.

ASCAP just wants money from the carrier's commercial ringtone sales. It's got nothing to do with anything else.

Re:What about radios, etc?

[mr_matticus]

All right, then why are businesses hounded for playing the radio for their customers?

Which businesses? "Hounded" in what way? By whom? Where have they been denied their exemption under the law?

This kind of synthesized proposition is meaningless because the question and the response will inevitably be about different things. You're referring, I assume, to anecdotal reports of over-aggressive conduct by collection societies. That's par for the course in the business world, end to end, whether copyright is involved or not.

If we're ignorant, then how about enlightening us instead of just calling names?

How about not making statements you have no authority to make, and presenting them as fact? How about not asserting challenges alleging an "inconsistency" without possession of the requisite knowledge to establish it? Pose responses in the form of a question if you don't know what you're talking about.

Making it look like your arguments are factual and supported by reality when they are not is simply ignorant.

The assertion that a loudspeaker is a transmitter is expressly rejected by law and practice. Moreover, it would give the entire statutory section a scope of exactly zero. There is no other word than "ignorant" to describe a person making such a flatly fallacious assertion. Stumbling over oneself to issue a correction or an argumentative challenge, when the information they pose is both incorrect and nonsensical, is a disservice to knowledge. You want enlightenment? Learn to seek it constructively.

If you consider being called ignorant when you make such a grand display of it to be "being called a name", that's your issue, but coming from someone whose discourse regularly includes the word 'fucking', I place little weight on comments of tone and etiquette. Ignorance is the lack of knowledge. It can only be an insult to someone who purports to have that knowledge in the first place, when it is clear s/he does not.

Suck it, ASSCRAP.

[Mix Master Nixon]

Fine, you pricks. We'll stop providing you with free exposure for your shitty music. Happy now?

Re:RIAA

[damn_registrars]

the RIAA will sue for your phone to see if you have any illegal downloaded ring tones

To the RIAA, I say fucking bring it. They can search my phone every way they want they won't find any illegal music on there. Some of us use our phones for - can you believe it - communication, rather than entertainment. Hell I'll save them the time, then can send me the money they'd pay their assmonkey lawyer and I'll send them my phone in exchange. Then I'll take that money and buy myself a newer phone and send them a thank-you card.

Obligatory

[copponex]

The interest of the dealers, however, in any particular branch of trade or manufacture, is always in some respects different from, and even opposite to, that of the public. To widen the market and to narrow the competition, is always the interest of the dealers. To widen the market may frequently be agreeable enough to the interest of the public; but to narrow the competition must always be against it, and can serve only to enable the dealers, by raising their profits above what they naturally would be, to levy, for their own benefit, an absurd tax upon the rest of their fellow-citizens. The proposal of any new law or regulation of commerce which comes from this order, ought always be listened to with great precaution, and ought never to be adopted till after having been long and carefully examined, not only with the most scrupulous, but with the most suspicious attention. It comes from an order of men, whose interest is never exactly the same with that of the public, who have generally an interest to deceive and even to oppress the public, and who accordingly have upon many occasions, both deceived and oppressed it.

-Adam Smith, The Wealth of Nations

Re:RIAA

[Anonymous Coward]

Some of us use our phones for - can you believe it - communication, rather than entertainment.

Incredibly narrow minded from someone on a tech site. Cellphones aren't just phones anymore. My phone has 5 megapixel camera, opera mini as browser and full Java support. And it's not a high end phone.

I do use it to take pictures (including from political rallies to which I actively take part), SSH to my computer when I need to do something when on the road, check the latest news...

And believe it or not, I don't want anyone to search it without a permission from a court.

Re:Begs an interesting question.

[LunaticTippy]

You think he means "raises an interesting question" because the historically accepted meaning of "begs the question" is the use of an unproven assertion?

That, is begging the question.

Re:I recommend they come ask me in person.

[jd]

Sure, anyone has the right to their day in court. On the other hand, it is most certainly the fault of the law if the cost of failing in a malicious or frivolous lawsuit is so minor and the rewards of success are so great that there is every incentive to flood the system.

The system must protect itself if it is to fulfill its alleged role of protecting society. The moment corporations can DDoS the legal system for fun and profit is the moment the legal system stops protecting anyone.

Re:RIAA

[houstonbofh]

Incredibly narrow minded from someone on a tech site. Cellphones aren't just phones anymore. My phone has 5 megapixel camera, opera mini as browser and full Java support. And it's not a high end phone.

I do use it to take pictures (including from political rallies to which I actively take part), SSH to my computer when I need to do something when on the road, check the latest news...

And believe it or not, I don't want anyone to search it without a permission from a court.

And mine has all that as well, but all I use is the phone. All I want is a phone and bluetooth. The camera is useless since taking the pictures off the phone costs money. The net access is similarly castrated. Give me a good phone and a good computer, not a half assed version of both.

Re:Begs an interesting question.

[shentino]

Presumably the place that sold the ringtone to you gave you a license in the first place.

You live in a fantasy land.

[typidemon]

You have 10 years to cash in on your ideas. You want to screw the whole world over in a fit of selfish "VIEW ME AS THE ARTIST I AM!" tantrum, enjoy your 10 years, but the government should not support you after a decade of your decadence.

The number of people who earn enough money through their patents to be considered decadent is quite small. Patents are supposed to protect people like you, who come up with a great idea, from companies like Microsoft who can steal it and cost-lead your product until you go out of business.

Also, you're living in some sort of fantasy land where you think that all projects can go from early prototypes to final polish release in 10 years. I've worked on projects where the earliest (patented protected) prototype is more than 10 years old, and it's worth hundreds upon hundreds of millions of dollars and your argument is (apparently) "tough shit you should have sold it sooner!"

The real problem with patency isn't that it protects the inventors monopoly. It's that it's possible to patent practically anything, including ideas. Patency should protect the method of creation, not a concept.

Re:RIAA

[Machtyn]

If you have to pay to use the bluetooth capabilities to interface with a $5.00 bluetooth USB adapter on your desktop or laptop, then you have the wrong phone.

Similarly, I have a phone with an adequate camera, bluetooth, Internet capabilities and Java, but I only use the phone, text messaging and camera. The data plan is still too expensive.

Re:RIAA

[RubberDogBone]

Don't put it past them. Soon enough, they'll go after anything with ears. Dogs can sort of sing. Cats sort of howl, sometimes musically. And songbirds! Holy crap, not only can they make loud musical performances in public, they can also hear songs on the radio, copy them, and add those songs to their performances!

They also steal the sounds of ringtones, TVs, car horns, sirens, other birds, and they play them back constantly. And they migrate, thus violating regional copyrights and territory licensing. Sometimes people feed them too which is aiding and abetting!

Face it, birds are the biggest thieves of music of all time.

Re:Someone...

[numbski]

Hey, they're simply (continuing) to live up to their name!

When I was in college (went to a small christian college in IL), the students were doing a self-led 10pm worship that was nothing but singing. I was the only guy on campus that owned an accoustic bass guitar, so I was asked to play along with the other guitarists, and agreed. We basically sang whatever praise and worship songs people started singing, and the guitarists went along with it and ad-libbed.

Well - about 2 weeks after we started this, the college got a letter from ASCAP demanding performance payments. I kid you not - someone on campus turned us in. For doing praise and worship in a private group. The girl scouts around a camp fire at least is a large enough organization that I can almost see it, but someone on campus was just feeling spiteful, and even after explaining the situation ASCAP would not back down and threaten to sue us if we continued.

So we couldn't do it anymore. :(

Absolute idiocy. If ever a group was aptly named, ASCAP has done themselves a service at least in that department.