ASCAP Wants To Be Paid When Your Phone Rings 461
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by
kdawson
from the don't-even-think-about-whistling-the-beatles dept.
from the don't-even-think-about-whistling-the-beatles dept.
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."
No Ringtones (Score:4, Informative)
Yet one more reason to avoid ringtones.
Not saying they are correct, just that I hate being forced to listen to someone's obnoxious music every time their phone rings.
Besides, even if it does count as a performance... doesn't selling a license to a song as a ringtone imply the right to use the ring tone without paying each time?
Re:What about radios, etc? (Score:2, Informative)
Does this mean if I have a radio with speakers in a public place I need to pay some kind of fee?
Yes, it does.
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?
Their situation is no different. The law doesn't distinguish between a business playing the radio and any other person playing the radio; you aren't exempt from the insane restrictions of copyright just because you aren't making money.
Pretty fucked up, huh?
The only reason that part of the law is (sometimes) enforced against businesses and never against people with boom boxes on the beach is that businesses are easier to keep an eye on and they tend to have more money.
Re:Legal Motivators at fault (Score:3, Informative)
You are obviously not an attorney and obviously have no legal training, so why don't you not comment on things you know nothing about. Only trademarks can suffer from genericide. Copyright holders can and do selectively choose what to enforce and it has no impact on their rights. A copyright holder could sit back, watch a million people infringe its work but sue you for it cause they felt like it. The only impact it possibly could have is on damages, but even then we have the lovely statutory damages anyways.
Stick to whatever profession you are actually trained in, thanks.
Hold on, ASCAP != RIAA (Score:5, Informative)
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.
Re:Begs an interesting question. (Score:3, Informative)
+1 Pedantry (Score:2, Informative)
I did actually mean "raises an interesting question," but that's just too funny.
Re:What about radios, etc? (Score:5, Informative)
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.
Re:What about radios, etc? (Score:5, Informative)
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.
Re:Begs an interesting question. (Score:5, Informative)
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.
Re:Begs an interesting question. (Score:4, Informative)
On the contrary, potentially both #4 and #5 cover such use:
Where the exception in 5(B) says that commercial entities are not eligible for that exemption. In short, AT&T causing the public performance to occur is not exempt if it is shown that ringtones are public performances, but an individual installing a ringtone on a phone is exempt. AT&T would probably also be exempt if they hadn't sold the ringtones... but of course, they did.
Like I said in another post, this case is about AT&T charging people extortionate fees for ringtones under the guise of it being required because of license fees, but then not paying those license fees. ASCAP is not trying to make individuals pay per play for ringtones.
Re:RIAA (Score:3, Informative)
A mobile phone for me is an annoyance, I don't turn it on very often now because I've learnt that people keep phoning me asking for favours/help much more often than to see how I am/do I want to go to the pub etc. If I want to talk to people for any length of time I go over and see them in person.
Re:What about radios, etc? (Score:3, Informative)
Perhaps I was mistaken and should've referred to recordings instead of the radio.
Yes, you were. There are different rules for prerecorded sources.
How about not lying by omission by ignoring the licensing requirements for music recordings and the size- and speaker-count-based exceptions to the radio and TV exemptions?
And there you go again!
The square footage and equipment limitations are not for 110(5)(A). The requirements for 110(5)(A), the radio on the beach, are, as listed, a single receiving apparatus of the kind commonly used in private homes. The limitation is the number of receiving apparatuses: one. There is no square footage requirement at all. It is neither a lie nor an omission.
The square footage requirements are for 110(5)(B) use, which are entities not using a single receiving apparatus of the kind commonly used in private homes. These are bars, restaurants, gas stations, etc. with multi-room, multi-speaker setups, walls of televisions and so on. They are subject to size and equipment limitations if they are claiming the free exemption. If they have more speakers, more displays, or larger displays, then they have to arrange for an express license.
At this point, your displays of ignorance have reached comic levels. You didn't even bother to read, let alone think, before you came back, once again, with your baseless, argumentative, ignorant assertions. It's astounding.
Re:What about radios, etc? (Score:2, Informative)
My parents' restaurant was approached by BMI last year (BMI represents the artists that ASCAP doesn't).
They were told we have karaoke 1 night a week so they sent us in a nice form to fill out asking if we have hold music, how many radios we have in the establishment, how many nights of karaoke we have, if we play any "music channels" like MTV/CMT/GAC/etc, if we have bands at any time and if we ever charge a cover charge, do we have a jukebox and is it covered by the JLO (yet another music licensing organization). Each one of those things was were so much to them (from 25 cents a seat to a % of the cover charge). Since we only did karaoke 1 night a week their little worksheet informed me that that was worth $35.00 (35 cents for 100 seats allowed by the fire marshall). However, their MINIMUM license fee was ~$400.
They started calling me 3x a day for a week straight. They were suspicious that our hours were different from theirs (we do dinners from 4-10pm EST) and they started hammering me with all sorts of questions about our radios. They thought it was odd that we stopped pplaying radio in our place after we lost the 6th one to lightening (we live in what is often called the Lightening Capital of the World here in FL). I asked how they could charge us for listening to a radio music that the radio station already paid to play and they told me that NOT ONLY is it considered a 'public performance' but also if *ANYONE* could hear a radio in the kitchen it would be a SEPARATE license--yes, that includes the cooks/dishwasher. At that moment the CSR got rather snotty when I laughed over the phone asking "What would be the point of playing a radio no one could hear?"
Long story short: we still had to pay the $400 for a license that they, themselves, admitted to only being worth $35 to them. Ironically, we got a 10% discount for paying it all at once (meaning our discount was more than the whole thing was worth to them)
Re:What about radios, etc? (Score:4, Informative)
Which businesses? "Hounded" in what way? By whom? Where have they been denied their exemption under the law?
http://www.opuzz.com/2007/08/ascap-initiates-lawsuit-for-playing.html [opuzz.com]
"Are you a business owner or manager? Are you aware it is illegal to play copyrighted music on the premises (for example, music on hold, in-store music) without a music license?"
"Last week in Seattle two dozen venues were cited in a lawsuit by ASCAP for failing to properly license their music. "
http://www.ascap.com/press/2007/073107_infringement.html [ascap.com]
"New York, NY, July 30, 2007: The American Society of Composers, Authors and Publishers (ASCAP) today announced that it has filed 26 separate infringement actions against nightclubs, bars and restaurants in 17 states.
In each of the cases filed today, the business establishment has publicly performed the copyrighted musical works of ASCAP's songwriter, composer and music publisher members without obtaining a license from ASCAP to do so."
http://www.ascap.com/licensing/licensingfaq.html [ascap.com]
"8. I'm interested in playing music in my restaurant or other business. I know that I need permission for live performances. Do I need permission if I am using only CD's, records, tapes, radio or TV?
Yes, you will need permission to play records or tapes in your establishment." ...
"10. I want to use music-on-hold in my business. Do I need permission?
Yes. When you place a caller on hold and transmit music via your telephone lines, that is a public performance of the music. It is your responsibility to obtain permission to perform ASCAP songs from ASCAP or directly from the copyright owner."
etc.
Re:Pure ignorance (Score:3, Informative)
Which didn't stop them from _trying_. And they actually managed to get a few licenses before the bad PR got them to back down.
Re:Someone... (Score:5, Informative)
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.
Re:RIAA (Score:4, Informative)
I'm guessing he is a Verizon subscriber. They cripple the firmware of their phones. Basically any feature of the phone which might be used to avoid paying for one of their services is disabled. Bluetooth is usually limited to headsets for example. If you want to send a picture or audio file to another phone (without using any 3rd-party tools, i.e. BitPim) you will need to send it as a MMS message. They charge you for that, by the way. (I used their service in the past. I didn't realize they did this at the time or I wouldn't have signed up.)
Re:Someone... (Score:2, Informative)
The words would be property of the writer...
No, they'd be property of Paramount too. It doesn't necessarily have to be done that way, but in practice writers don't generally get paid unless they sign contracts assigning the rights to their work to the party with the checkbook.
Re:Copyright law... (Score:3, Informative)
Sure there is; otherwise, assassinations would rise tremendously.
Why ? Where's the value in an invention that is no longer patent protected ?
No to mention - MURDER IS ALREADY ILLEGAL