Do Ringtones Played in Public Spaces Violate the Copyright Act?
In an attempt to collect additional royalties from Verizon Wireless and AT&T, ASCAP recently tried to persuade a federal judge that playing a ringtone on a cellular phone in public amounted to copyright infringement.
Enforcement issues aside, In re Application of Cellco Partnership (09 CIV. 7074) raises important policy questions regarding the scope of copyright. Are copyright holders overly compensated for their creative efforts under the current regime or are more incentives needed to keep pace with the changes in technology that allow for massive infringement with the single click of a mouse? Regardless of the policy viewpoint adopted, the public can (for now) take comfort in letting their cell phones ring at the park or the beach without worrying that doing so constitutes copyright infringement.
At issue in Cellco was whether ringtones playing in public placed constituted a “performance” within the meaning of Section 106 of the Copyright Act, which provides that a copyright owner has the exclusive right “in the case of literary, musical, dramatic, and choreographed works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly.” Section 101 specifies that to perform or display publically means to “transmit or otherwise communicate a performance … by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.”
The Court reasoned that because only subscribers receive the transmission or alleged performance, such transmission or performance is not available to the public (non-subscribers) and thus not covered by the Transmission Clause. According to the Court, “there is no qualifying public performance under §106(4) when the customer uses the ringtone to alert her to an incoming call. Thus, even [if] the downloading of a ringtone is considered as the first link in the chain of transmissions, it does not qualify as a public performance.” Accordingly, ringtones played in public places did not qualify as public performances within the meaning of Section 106 of the Copyright Act and the Court held that Verizon could not be directly or secondarily liable.
Verizon was found not to be directly liable because Verizon neither “performs” the music nor engaged in “conduct that can be said to cause a ringtone to be played in public.” In applying Section 101 of the statute, the Court held “Verizon does not ‘recite, render, play, dance or act [the ringtone] either directly or by means of any device’ and thus does not ‘perform’ the music.” The Court noted that “Verizon’s only role in the playing of a ringtone is the sending of a signal to alert a customer’s telephone to an incoming call.”
After looking to the exemption from §106(4) found in §110(4) for “those performances of a musical work that occur within the ‘normal circle of a family and its societal acquaintances,” the Court found that Verizon could not be secondarily liable. The Court reasoned that the “expectation of profit is important to determining whether a performance fits within the §110(4) exemption,” but “Verizon customers are not playing ringtones for any ‘commercial advantage;’ they do not get paid any fee or compensation for these performances; and they do not charge admission.” Thus, after finding that neither the customers nor Verizon were liable for copyright infringement, the Court granted Verizon’s motion for summary judgment (the Court also granted summary judgment in favor of AT&T “for substantially the same reasons” in In Re Application of AT&T Mobility, (09 CIV. 7072)).
Consequently, Verizon Wireless and AT&T do not need public performance licenses for the ringtones they sell to their customers.
This decision seems to comport with the general policy underlying Copyright Law – to grant copyright holders exclusive rights to their works in order to “promote the Progress of Science and useful Arts.” If indeed economic rewards to authors should be treated as secondary to the broad dissemination of works for the public benefit, then denying ASCAP’s request for additional royalties in order to give the public access to the works for which they have already paid rings true to me.
Copyright, Music, Technology | Jonathan Menkes | 
November 9, 2009 4:05 am | 
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