ASCAP Demands Additional Performance Tax for Ringtones

You got yourself a brand new cell phone. You then go do the honest thing and pay that huge amount of money for a ring tone and put it on your cell phone and set it to be your ring tone. Apparently, you now have to hope that your phone doesn’t ring or else you are allegedly infringing copyright unless you pay a performance tax – at least that’s what ASCAP is hoping for.

Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes

For those who believe that copyright laws make pirates out of us all, they may have some fresh ammunition over this latest revelation. The EFF has written about this. In a court brief between ASCAP and AT&T, ASCAP argues that even if you have legally paid for your cell phone ring tone, you could still be a copyright infringer because you have not paid a performance tax. As we’ve witnessed already, one woman faced an $80,000 fine for infringing copyright.

So, should someone be liable for a 5 figure amount every time their cellphone goes off? The EFF doesn’t think so:

Fortunately, ASCAP is wrong. Even if the incidental mobile phone playback of a short snippet in a public place were viewed as a “public performance” (something no court has ever held, and that would also put you in jeopardy for playing your car radio with the window down), the Copyright Act has a specific exception, 17 U.S.C. 110(4), that covers performances made “without any purpose of direct or indirect commercial advantage.” That should take care of ringtones going off in the restaurant.

The EFF also comments on how this could be considered fair use (how often does a full three and a half minute song get played before it is answered anyway?)

This also comes in to question how many millions of Americans this could criminalize. In this day and age, it’s so frequently the case that people without cell-phones end up being in the minority. Is it really all that enforceable to be monitoring every street corner, every bus stop, every elevator, every subway and every public space to listen for ring tones all day long?

Additionally, the EFF likens this to having the car stereo on with the windows rolled down. There’s something amiss when arguing that all cell phone users now being asked to fork over a performance tax just because they have a ring tone.

ASCAP is the American Society of Composers Authors and Publishers. The organization is responsible for collecting royalties on “performances”. Wikipedia entry.

Drew Wilson on Twitter: @icecube85 and Google+.

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.

%d bloggers like this: