ASCAP Wants To Be Paid When Your Phone Rings 461
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."
What about radios, etc? (Score:5, Insightful)
Suck it, ASSCRAP. (Score:4, Insightful)
Fine, you pricks. We'll stop providing you with free exposure for your shitty music. Happy now?
Re:Suck it, ASSCRAP. (Score:3, Insightful)
They probably won't be, but I know I will.
Keep that shit music to yourself. Phones should sound like phones.
Re:RIAA (Score:5, Insightful)
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 (Score:5, Insightful)
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:What about radios, etc? (Score:5, Insightful)
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:RIAA (Score:3, Insightful)
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:I recommend they come ask me in person. (Score:3, Insightful)
We can get really mad at the RIAA for scaring people and ruining lives [wikipedia.org], but this group isn't suing teenagers. They're suing AT&T, with almost $300 billion in assets. Excuse me if I'm not terribly concerned about one of their legal teams having a little more work to do to fight off this frivolous lawsuit.
Re:Slippery slope on "public performance" (Score:2, Insightful)
They gonna come after me when I've got my car stereo cranked and the windows down?
I know the people driving around me probably should, but is that really a "public performance?" A ringtone is no different than playing a stereo. It just goes off when you're not expecting it.
I really would prefer it if you people could just turn your music down. I don't care if you want to destroy your eardrums listening to crap. I just don't want to hear music so loud it drowns out normal conversations from people on the street.
Re:Begs an interesting question. (Score:4, Insightful)
That, is begging the question.
Re:Copyright law... (Score:3, Insightful)
Patents should be 70 years or 30 years after the creator's death
There is no justification for patents (or copyrights) to last an instant past the inventor's death.
Re:I recommend they come ask me in person. (Score:5, Insightful)
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:I recommend they come ask me in person. (Score:3, Insightful)
Eh I don't know if you can really blame them. If they can successfully sue then it's entirely the law's fault (or the judge for badly interpreting it)... Anyone can bring a case, no matter how outlandish.
I can't agree with that. If someone engages in frivolous lawsuits, that's a reflection on their principles. Just because it's legal, doesn't mean it's an appropriate thing to do. There are plenty of ways I can be a jerk without breaking the law, but I'm still a jerk.
Re:Legal Motivators at fault (Score:3, Insightful)
Two key notes here. First, that's trademark, not copyright. ASCAP has nothing to do with trademark enforcement.
Two, trademark holders don't HAVE to act like assholes to defend their mark. They CAN license it for a penny to the person who's using it harmlessly and it is still defended against infringement (it's not infringement if it's licensed!).
Re:RIAA (Score:4, Insightful)
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:The silver lining? (Score:2, Insightful)
Re:Begs an interesting question. (Score:4, Insightful)
Re:Begs an interesting question. (Score:3, Insightful)
Even if ASCAP doesn't win, the RIAA will sue for your phone to see if you have any illegal downloaded ring tones.
Well, I think the case begs an interesting question: If this isn't a public performance [bitlaw.com], then why not? Which exception [copyright.gov] governs it?
I'm not an IP law student or lawyer, but I don't see an exception that governs this case. I'd imagine that determining when and how to bill when your phone rings in a situation that's sufficiently public would be nightmarish, but it seems like their case passes the laugh test.
While IANAL, I think it would go under the the intended use. While some people have specifically loaded MP3/RAW Media tracks/etc onto their phone for use, the number of people that only get their ringtone's form "official providers" (e.g. their phone service, etc.) and probably either purchase (or receive for free) the ringtones from that official service. Thus, if the service licensed the use of the media with the intent of offering on that service - which probably would have had to be in their contract - then it probably goes that the intent of a ringtone is by nature a public performance and thus non-infringing by definition.
A suitable metaphor would be if you picked up a CD, and put it in your CD player. If you had license to use it in your CD player and the definition of the CD player was such that it made a "public performance" then the license would be required to allow such "public performance".
That's not to say that I agree with their definition of a "public performance" - I quite likely don't. For example, my freshmen year of college we frequently watched movies in a common area of the dorm - available only to other students and/or residents and their guests. (E.g. you had to be a student or faculty to gain access; guests had to register at the front desk.) People would come and go, and there'd probably be at most 20 people there. My sophomore year they told us we couldn't do that any more as it was a "public performance" - simply because there was no regulation of who could come by and watch, and they didn't want to deal with any legal issues that may further arise if they didn't; dorm staff did enforce it (they had to, not blaming them). Yet if we stuffed those same 20 people into a dorm room, and let anyone come and go into the dorm room it would have been a "private performance".
That's not to say that there is legitimate need to regulate "public performances" - there is. But the definition needs to be narrowed down a lot more than it is currently, and should probably require a minimum number of people and more.
You live in a fantasy land. (Score:3, Insightful)
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:What about radios, etc? (Score:5, Insightful)
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.
Re:Begs an interesting question. (Score:2, Insightful)
Except the "common usage" phrasing doesn't even make sense when parsed. "Raises the question" is not only technically and pedantically correct, it makes more sense as a phrase. I think we're all better served by learning proper and precise language, and I give kudos to the PP who actually gave a helpful, informative, polite correction without the usual pedant's dickitry.
Obligatory XKCD (Score:3, Insightful)
http://xkcd.com/479/ [xkcd.com] - "Tones"
Re:RIAA (Score:1, Insightful)
Re:Hold on, ASCAP != RIAA (Score:3, Insightful)
...to retrive the royalties I had earned...
Exactly what did you do to earn those dollars from the performance in Poland? Had they not played the music, would you have more free time to be with your family or to produce more music? Don't get me wrong, I'm for the fair compensation of artists. However, I believe that society should choose to provide incentives for artists to continue producing works of art. This is a willfull decision to give people a means to live (money) even though they don't produce anything that is physically valuable to society. It is a gift. You seem to believe that that money was rightfully owed to you and copyright law only serves to clarify that fact. The right to be free is natural, the right to be payed for music is not.
The public tide is turning. If you guys don't act a bit more gracious and keep letting these ruthless organizations do your dirty work, the people of the world may decide you are not worth the investment and go back to the old "patron of the arts" model where you get to be some rich guy's live-in artist.
Re:RIAA (Score:4, Insightful)
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 (Score:4, Insightful)
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.
Give a finger, get an arm taken (Score:3, Insightful)
Such harebrained ideas are only hatched because they're used to getting away with ludicrous claims and actually getting what they want.
Copyright claims have left the borders of sanity. Actually they lept over it by some margin. Copyright was about creating a balance between creators and consumers of content. It's anything but this today.
It's time to get back to sensible copyright. Either that or a battle will ensue that the rights holders cannot win. They depend on income from content consumers. Content consumers, otoh, can live well without the content.
Re:Someone... (Score:5, Insightful)
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.