The Electronic Frontier Foundation (EFF) urged a federal court Wednesday to reject bogus copyright claims in a ringtone royalty battle that could raise costs for consumers, jeopardize consumer rights, and curtail new technological innovation.
Millions of Americans have bought musical ringtones, often clips from favorite popular songs, for their mobile phones. Mobile phone carriers pay royalties to song owners for the right to sell these snippets to their customers. But as part of a ploy to squeeze more money out of the mobile phone companies, the American Society of Composers, Authors, and Publishers (ASCAP) has told a federal court that each time a phone rings in a public place, the phone user has violated copyright law. Therefore, ASCAP argues, phone carriers must pay additional royalties or face legal liability for contributing to what they claim is cell phone users' copyright infringement. In an amicus brief filed Wednesday, EFF points out that copyright law does not reach public performances "without any purpose of direct or indirect commercial advantage" -- clearly the case with cell phone ringtones. If phone users are not infringing copyright law, then mobile phone service providers are not contributing to any infringement.
"This is an outlandish argument from ASCAP," said EFF Senior Intellectual Property Attorney Fred von Lohmann. "Are the millions of people who have bought ringtones breaking the law if they forget to silence their phones in a restaurant? Under this reasoning from ASCAP, it would be a copyright violation for you to play your car radio with the window down!"
ASCAP has responded by saying that it does not plan to charge mobile phone users, just mobile phone service providers. But if ASCAP prevails, consumers could find themselves targeted by other copyright owners for "public performances." Worse, these wrongheaded legal claims cast a shadow over innovators who are building gadgets that help consumers get the most from their copyright privileges.
"Because it is legal for consumers to play music in public, it's also legal for my mobile phone carrier to sell me a ringtone and a phone to do it," said von Lohmann. "Otherwise it would be illegal to sell all kinds of technologies that help us enjoy our fair use, first sale, and other copyright privileges."
The Center for Democracy and Technology and Public Knowledge also joined the EFF brief.
For the full amicus brief:
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Media Relations Director
Electronic Frontier Foundation