Here’s the question raised by the American Society of Composers, Authors and Publishers, in the music industry licensing groups that ask a federal judge in New York to demand that the two biggest U.S. wireless carriers, AT & T and Verizon, to pay for public performance licenses for the camera phone ringing.
In the case of the last skirmishes in the battle between the music industry and technology companies for copyright, and one legal expert said it threatens to draw consumers in the middle of it.
The financial stakes are high. One study pegs in the world of melody revenue of $ 5 billion in 2009. Meanwhile, Inc. Broadcast Music (BMI) said, ringtones will generate about $ 510 million in U.S. retail sales in 2008, last year the publishers of the rights groups have made such projections.
If ASCAP proves its case, Electronic Frontier Foundation in San Francisco, said that could cost consumers and technically turn millions of users ringtones on violators of copyright.
“Obviously they are pointing the finger at each user, which is a mobile phone that goes off in the park or on the beach,” said Fred von Broken, digital rights group of senior intellectual property counsel. “We can annoy people, but we do not violate copyright law.”
But officials at the ASCAP said New York is the only organization trying to collect their fair share of revenue from businesses that profit from the melodies. They strongly denied that the group is going after consumers, and said by critics as a background Broken using “scare tactics”.
“We will fight hard to the very principle that the livelihood of our members at stake,” said lawyer Richard ASCAP Reimer. “This is not a problem of the consumer. This is a more business-business issue.”
This case is before U.S. District Judge William Conner in White Plains, New York, which court has jurisdiction to set fees for ASCAP collects on behalf of more than 350,000 composers, composers, lyricists and music publishers in the United States.
ASCAP and other performing rights organizations like BMI to collect royalties and licensing fees, when its members are the songs heard in public places, such as radio or television, or in concert, club or shopping mall. Performance fees are different from fees collected by other organizations of the music industry from the sale of music recordings.
The current dispute stems from the 2007 rate by a court that is determined by an act of downloading music files from Internet sites can not be considered a public performance. ASCAP asserts that some wireless providers that had previously been paying for calls license public performances, which have been used to justify the decision to cancel these payments.
Now, ASCAP submits that once downloaded to your phone, ringtones file can be played in public places, so it does not matter “that he meets the definition of a public performance in accordance with the terms of the Federal Copyright Act of 1976.
ASCAP says signals the public, regardless of whether some customers phones can sometimes be switched to vibrate, or is turned off in the house. … To call the performance be a public execution, it need not be received by the public every time. ” He also argues that promotional ringtones previews that carriers are offering online community service.
“We really believe this is all about the transfer from source to end the listener into the music”, Reimer said. “It does not matter whether it be radio, regardless of what cable TV or a ring tone - is the transfer of that music.”
While ringtones are usually played only a few seconds of the song, they are usually in a matter of fact, the main melody “of the artist or performer of creative work, said the representative of ASCAP Phil Crosland.
Representatives of AT & T and Verizon declined to comment because the case is pending.
But von Broken, which filed a friend of the court brief Wednesday on behalf of wireless carriers, said ASCAP legal arguments were “insane” and “deaf” because they are based on the introduction of wireless carriers secondarily responsible for copyright infringement in the mobile phone owners to play the melody in public places. “One could even argue, your mother is a public execution,” he said.
ASCAP If successful, the case could open a can of worms for other technology companies that provide equipment and services that allow music to be heard in public places.
“ASCAP can go by car, and say:” You know, there are certain times, people roll their car Windows, playing music that will lead to a public execution, “said von Broken.
AT & T subscriber Michelle Vanhille of Hayward ASCAP challenged argument.
“On the one hand, they are singers, they should get paid for the work they are doing,” said Vanhille, who downloaded a dozen tunes in recent years. “But if you’re just playing a part of it, I do not see how this is an external performance. It does not seem rational.”
ASCAP did not say how much it is seeking from the carriers, but plans to seek retroactive payments when the first musical ring tones were sold.
