ASCAP Wants Public Performance Royalties For… Cellphones?
The stage is set. The audience quiets as the house lights go down. The curtain opens, and a single spotlight trains itself on you. You pull out your cell phone. It rings, playing the latest hot pop song.
After 30 seconds, the cell phone goes silent. You take a bow, the audience applauses. Thank you for coming to tonight’s performance, please have a safe drive home!
Sound absurd? Not if ASCAP gets its way. The Performing Rights Organization wishes to have ringtones classified as public performances under copyright law. Everytime your phone rings, so do ASCAP’s cash registers.
On Friday, the Electronic Freedom Foundation posted a story covering ASCAP’s brief in a legal fight between it and AT&T seeking this very thing.
Now, I’m a supporter of ASCAP. They are a powerful ally to musicians of all stripes – from superstar to the most independent of artists. But this latest move by them would just add another layer of wackiness to the already convoluted and crazy landscape of copyright law and licensing. It reminds me of the Author Guild’s attempt to collect public performance royalties from Amazon’s Kindle device. Because it contained a feature allowing a speech synthesis program to ‘read’ the book you’ve purchased to you. Pretty handy if you’re, say, blind.
I haven’t had the time to fully analyze ASCAP’s legal argument in its brief, but one thing did pop out at me. They use quite a bit of legislative history to back up their interpretation of what a ‘public performance’ is. In the realm of statutory interpretation, legislative history ranks pretty low. Most judges only turn to what Senators and Representatives said during the bill-making process when more robust methods of interpretation cannot resolve certain ambiguities in the statute’s text itself. Some judges (Supreme Court Justices Scalia and Thomas in particular), avoid using legislative history at all if they can help it.
Not only that, but the legislative history they cite, except for one instance, is from the 1960’s and ’70’s. This is well before the time of cell phones. (Never mind ringtones themselves; the first mobile device with custom ringtones came out in 1996.) It’s a stretch to find legislative history useful for a situation that was beyond comprehension at the time it was made.
The EFF points out several further problems with ASCAP’s legal argument. Notably, the Copyright Act carves out an exception to the public performance definition in 17 U.S.C. 110(4) for performances made “without any purpose of direct or indirect commercial advantage.” Along those same lines, I would include the following language from 110(5)(A):
(5)(A) 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.
This basically exempts you from having to pay a royalty for playing your car radio with your windows down, or your headphones to loud on the subway. That seems like common sense to most of us (which is probably why it needed to be specifically spelled out in the Copyright Act.)
But even if ASCAP has made a successful legal argument, the judge should not find for them. This is one of those situations much like the one Supreme Court Justice William Douglas wrote about when he tossed aside centuries of common law because of a technological advance. The defense wanted him to uphold the idea that property rights extend infinitely toward the heavens, requiring the newly established airlines of the time to negotiate with each and every property owner to gain the rights needed to create a flight path. Justice Douglas’s famous reply was,
“Common sense revolts at the idea.”
Common sense revolts at the idea that when your phone rings, it is on par with putting on a play using music, or a radio station broadcasting music to thousands of listeners.
An interpretation of the law that would make that the case is beyond common sense and logic. ASCAP only wants a bigger piece of the pie.
Image courtesy of samantha celera
I thought it was generally accepted that ringtones (mastertones, realtones, etc.) are reproductions (invoking a mechanical right) since they are copied on the user’s mobile phone and announce the reception of incoming calls, while ringbacks are performances of music made to an individual placing a call to a mobile customer, which replaces the ringing that the caller hears when he or she calls a mobile telephone (no copy is made on any user’s phone). As a result, ringbacks only implicate the performance right.
Last year’s Copyright Royalty Board decision would seem to confirm that ringtones are now compulsory as a mechanical at 25 cents per download, but ringbacks are still subject to good faith negotiations (not compulsory).