RSSASCAP wants money for your ringtone
By Angela Gunn | Published July 2, 2009, 9:43 AM
Not only do people in your vicinity fantasize about smacking you for that annoying "Play The Funky Music" ringtone you've been rocking since dirt was invented, ASCAP says that every time your phone rings, you're executing a public performance of the tune. And they want money.
ASCAP -- the American Society of Composers, Authors and Publishers -- has advanced the matter to (PDF available here) Southern New York's District Court, suing AT&T and Verizon over royalties the group says are due for content using music. That can mean, as ASCAP tells its members in a statement on its site, "delivery of full track songs, music videos, television content, ringtones and ringback tones." In other words, if your phone audibly rings, you've entertained someone and now you must pay.
Or someone must pay, anyway. In its court filing, ASCAP says it's not looking to bill individual consumers; they plan no RIAA-style pogroms against the general public, even if the group says consumers are what are called in such cases "primary infringers." Instead, they want mobile providers to pay. (That this would likely result in higher charges to consumers... well, how would that be ASCAP's problem?)
Oh please, said the Electronic Frontier Foundation in an amicus brief (PDF available here) filed Wednesday. Both the RIAA and service providers such as DirecTV have shown that they're happy to shake down individuals for claimed infringement if it suits their needs, says the brief -- and besides, this is hardly a "performance" situation.
In a statement to the press, the EFF's Fred von Lohmann -- characterizing ASCAP's claims as "outlandish" -- notes that by the logic of the suit, the group could charge for music playing on a car radio and overheard by passersby through an open window. The copyright law the group is invoking doesn't apply to performances "without any purpose of direct or indirect commercial advantage" -- humming a song as one walks down the street or playing the radio outside while you do yard work, for instance, aren't copyright violations. A ringing phone, says EFF, is in the same category. If it's not a copyright infringement, the mobile-phone providers in the suit can't have "secondary liability" for it; therefore, says EFF, no dice.
ASCAP, which was founded in 1913 (just four years after the landmark 1909 changes to copyright law) to ensure fair recompense for composers, has gotten something of a reputation in recent years for over-enthusiastic pursuit of their copyright claims against such entities as your neighborhood bar and, infamously, the Girl Scouts of America.
And what if I dig up one of my LPs, anyone remember those, and use a track off of it to make a ringtone? After all, I DID pay for that damn LP or is it supposed to be used only with an elliptical diamond needle? ASCAP (I love that name for the images it brings to my mind) and the RIAA never cared about the musicians. Out with them.
Because of them I still can't listen to some stations that used to stream on the web.
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|As for the Electronic Frontier Organization, they're trying to get rid of copyrights so that all the tech companies, for which they are a lobby, can have free content for all their devices that they're making billions of dollars on. Want to get rid of copyrights? Ok. Then let's get rid of patents too. So no protection for gadgets, etc.
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|So far as I can tell the EFF is not different
from AARP desire wise, and is what the NAACP
was in the nineteen sixties or seventies.
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So far as I recall the ASCAP version of this
lawsuit started in a garage (place where cars
get fixed by people who can get fired) in
Britain, and some arsfrtagel (darn my spelling
mistakes) heard some music and was the type
of person who can't understand that garages
are noisy and sued........
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|Actually... EFF has a patent busting project. They have been responsible for negating several patents.
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|I'll tell you what's ridiculous: saying that ASCAP (and by inferral, BMI and other performing rights organizations that help artists to actually be able to make a living despite the illegal downloading of music) is like (or worse) than the RIAA. Thank god for my performing rights organization or I couldn't have paid my rent last month, even though tens of thousands of people are listening to my music on internet radio. I see very few people in these kinds of comments defending, or even trying to take the point of view of the artist. All that's done is defending the "consumers" point of view and thoughtlessly vilifying any organization involved with the music industry, as if they're all evil. Yes, some of them have simply been middle men taking money from artists like me for decades. But others have been the allies of artists helping them to get the respect they deserve and to see that they're paid for their hard work the same as any other vocation to which someone devotes their life.
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|Here is a link to copyright law in the U.S.
http://www.copyright.gov/title17/
The law has long been broken down into 4 broad categories and this again is taken from the law itself:
"Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:
1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
2. The nature of the copyrighted work
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
4. The effect of the use upon the potential market for, or value of, the copyrighted work
The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission.
Acknowledging the source of the copyrighted material does not substitute for obtaining permission. "
Court cases have been all over the map. In some point #1 takes center stage and in others point#3 has. What can be said is that there really isn't a min. or max. amount allowed or not allowed. I'll leave it to everyone to look at the case law because, as I have said it is all over the map including the 30 second common belief.
Having said all that, This is one more example of the need to update and modernize patent, trademark, and copyright laws. I would also say that based on some case law ( I'll leave it up to the resourcefulness of each to find those cases), a case can be made that the DMCA is unconstitutional under the rulings of the Supreme Court over the last 50 years and needs to die.
Finally, This case will probably be decided on point 1 and that involves the question of whether company A charges for the ringtones. I would also say that the only ones that will benefit from this action is the music industry. The ones that will suffer are the artists and the consumer. I would end by saying that the ambiguity or wiggle-room allows the RIAA and other Mafia-oriented groups to gouge the public.
Others may disagree and I respect that but we need, in a public way, to begin a discussion of how the law has been abused by some groups.
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|ASCAP is a joke and far more evil then RIAA in my humble opinion. This also shows that ASCAP, RIAA and those they represent are loosing control and new methods for recording and getting your music out there are starting to scare them (well maybe started a few years ago :) ) and this is a panic move. This also clearly demonstrates that copyright laws are in serious need of changes when they can be abused as such.
The only thing I'm afraid of is for AT&T and/or Verizon to do a bone headed move and want to settle, nothing good would come out of that. Well maybe a class action lawsuit against them and ASCAP so that those who do not use copyrighted ringtones won't be charged the royalty fees etc.
I would suggest gathering ASCAP, RIAA the labels they represent and some of the artists like Sheryl Crow, putting them on an island and nuke it. But I made that suggestion somewhere else and it was pointed out to me that c***roaches would survive, darn.
So instead I'll just point out that the ASCAP, RIAA and who they represent, all of them Metallica included are proof that the devill does exist :)
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|My living room is not public.
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|/me powers off webcam remotely.
Yup. Totally private. No-one's watching you. Uh, hey... could you mode the vase on the mantle a bit to the left? It looks a bit off...
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|You mean the white one with red streaks
by the portrait?
If I do that it looks from the hallway like
Gampa Iberry's head is bleeding.
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|Pure idiocy.
Most ringtones last *less* than 30 seconds, which, I believe, is the "fair use" guideline.
My tones? A Murloc (When my son calls me), the "get 'em off me" bit from Weird Al's "Albuquerque", a section from MCR's "Mama" when my wife texts me, and the "Crank" dying ringtone when she calls me.
All are under 15 seconds long.
ASCAP: Come get me. Try to take me to court. I will file *one* motion and we'll never hear from you again. (of course, this is why they aren't going after the phone's users....they'd never get away with it...hence going after the providers who are much more likely to "settle" to get rid of it.)
They need to throw "Socialist" or "Supreme" or some "S" word before or after "Society" in their name... It would make it so much more *fitting* for them.
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|This spells trouble for all those people whose ring tone lasts longer than their conversations. I thought that US$0.99 was already too much for a ring tone. I suppose people might start to pirate them. Oh, wait!
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