Saturday, July 11, 2009

IP and technology - the neverending story

So you may have seen these news items about the latest move from the American Society of Composers, Authors, and Publishers (ASCAP). Those pop-song ringtones you buy for you cellphone, so that you sound all funky to the world and id your ex-girlfriend's call before you answer? Those are public performances and your phone provider should be charged accordingly!

This has led to a fair amount of outrage and – as seems typical of ASCAP legal ploys (see footnote below) – almost seems designed to elicit giggles. A phone ring is a public musical performance? How about your neighbor's stereo? What if I roll down the windows of my car and someone hears my stereo? How about little girls singing at girl scout camp?* Are all of these public performances?

Everyone seems to be talking about this potential threat to the owners of the phone, but as I read the documents, that's exactly the line of thinking that ASCAP is hoping to avoid. That's because casual, non-commercial performance of a song or recitation of a text are pretty clearly exempted by section 110(4) of the Copyright Code. If I perform a song for money, or play a recording because it draws more people to my business, then I owe ASCAP money. If I'm just playing my stereo or singing a song, and other people happen to hear it, then I don't. ASCAP doesn't want anything to do with section 110.

Here's what happened: ASCAP was charging performing rights fees to cell phone service provicers. But they were also getting a cut of the sales revenue from the ringtone purchase. When the court ruled, a couple years ago, that a downloaded music file should be treated as a record sale, while a streamed audio file counted as a broadcast performance, Verizon and AT&T decided the money off the sales was all they owed, and they quit paying for performing rights.

ASCAP doesn't like this and they're suing. But here's what they have to do to win their case: they have to first convince the court that a downloaded file triggered by a remote signal is really a form of streaming audio, and then they have to establish that the responsibility for the playing of music lies with the folks who notify you of a call, rather than the person who buys the music and sets it to play when his phone rings.

To argue the first part, ASCAP is grasping onto language in the definition which includes the words “designed for” or “capable of” contemporaneous playback. “Hey! It's exactly the same type of digital file, no matter how you deliver it! It could be played contemporaneously when it's downloaded, so this can treated as streaming audio! Triggering a downloaded file is just a tricky techno-dodge to get around their obligations.**”

If they pull that off, then they still have to establish that the ringing phone constitutes a public performance, and that it is a public performance by the phone company. That's critical, because 110(4) is ASCAP's third rail: if their case touches on it, they're probably fried. So they're trying hard to redefine the core issue. It's not about you playing your phone's ringtone; it's about AT&T or Verizon playing your ringtone for you.

ASCAP argues that, because the phone company can cancel your contract, has elected to sell you the ringtone, owns the network, and sends the signal to your phone, they are controlling the performance. Never mind that Verizon only sends the signal to my phone and I'm the one who decides what, if any, ringtone plays to announce it. ASCAP claims Verizon is playing music for me and they have "complete control" over the performance.

Just to cover all the bases, and make sure bloggers get a good laugh at their expense, ASCAP points out that an airwaves broadcast is always considered a performance, whether or not you can prove anyone had their radio or television turned on. So ditto with phones, right? They say the ringing is “public, regardless of whether some customers' phones may be sometimes switched to vibrate, turned off or located in the home. For a ring tone performance ... to be a public performance, it need not be received by the public every time." By this reasoning, it appears to be a performance, even if I had set the phone to vibrate, dropped it in the woods a week ago, and the battery has run dead. It might even still be a performance if I had dropped the phone into a volcano and neither it nor the digital file even exists any more.

If they were arguing this case before my court, they'd have a pretty slim chance of success. But judges are known to hang a decision on some very technical, literal, and counterintuitive reading of a text. We'll see how this one plays out.

My favorite part is this line from ASCAP's response to AT&T's motion for summary judgement:

“It is difficult to imagine how AT&T could more actively induce the unlicensed performance of ASCAP work than it already does.”

Oh, come on, ASCAP. I know your lawyers have more imagination than that!

* This example isn't chosen at random. Some dozen years ago, ASCAP leaped into a huge pile of PR manure by threatening girl scout camps to either pay up or shut up. I find it ironic that such tone-deaf people are entrusted with protecting the interests of musicians.

** In fact, downloading is the only efficient way to deliver ringtones without wasting bandwidth with every call.


kehrsam said...

It's been about 16 years since I took the Intellectual Property course, and I've never been involved in an IP lawsuit. But this is just crazy. The end user paid for the right to play the song. If they are nor using it for clearly commercial purposes, there is no IP issue. As I recall, the case on point was a business "rebroadcasting" a radio station by playing a boombox. The ruling of the Court was that it was only a commercial performance if the rebroadcast was over a professionally-designed sound system, not a boom box. A phone playing a tinkly .wav doesn't rise to that level. ASCAP strikes out.

By the way, interesting design, Scott. I'll have to visit more often.


Scott Hanley said...

If you treat the ringtone as a record sale, then the end user has paid for the right to play the song privately, so long as ASCAP got their cut of the sale price. That's why they want to deemphasize the end user and concentrate on the phone service as the delivery mechanism (hoping to get the phone signal defined as a broadcast).

I forgot to include the IANAL disclaimer at the top of the post, but my IP class was more recent than yours; otherwise, are credentials are pretty equal. ;-)

That case you mention might be relevant to the incident where Youtube received a takedown notice for a video of a dancing baby, because a copyrighted song was playing (albeit highly distorted) in the background. That action was also roundly ridiculed, but I don't think anyone found it worth litigating.

James Hanley said...

Hey, kehrsam's here. Now the joint will really have some class.

Good explanation of a complex subject. Would you write one about the current pending legislation that would require radio stations to compensate artists. I haven't had time to pay attention to it and think it through, and now you're much better with the IP logic than I am.