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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."
Even if ASCAP doesn't win, the RIAA will sue for your phone to see if you have any illegal downloaded ring tones.
Beer is proof that God loves us and wants us to be happy.
. . . why these people have not been struck by a meteor. If there were a God in this universe, there would be a meteor.
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
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.
I once fell down the stairs and the next day I recieved a bill from ASCAP and RIAA for performing a Lars Ulrich drum solo ... ok, maybe I do mean to be ridiculous.
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.
Do we just let AT&T and ASCAP fight this one out? This is like Iran and North Korea going at it.
-Patents should be 70 years or 30 years after the creator's death
How about not? Make them 10 years. 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. This isn't the industrial revolution or some atomic age. This is the information age where ideas are a dime a million. Today, unlike 20 years ago, everyone has access they need to sell an invention within a few days. Exposure is almost instant, and someone will do it better than you did in one year or less, anyway.
I am the richest astronaut ever to win the superbowl.
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.
It's a small world and it smells funny; I'd buy another if it wasn't for the money; Take back what I paid (SoM)
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.
Another word for "composer" is "handicrafter." Another word for "publisher" is "typesetter." So ASCAP should change their name from "American Society of Composers, Authors and Publishers" to "American Society of Skilled Handicrafting, Authoring and Typesetting Specialists."
Short form: ASSHATS.
but have you considered the following argument: shut up.
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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That line is the property of Paramount Pictures. Please remit settlement payment of $5,000, or hire legal representation.
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.
Dear AC, I do not have any money so am sending you this drawing I did of a spider instead. I value the drawing at $5,000 so trust that this settles the matter. Warm regards.