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Are Cellphone Ringtones a Public Performance?

Published onDec 02, 2009
Are Cellphone Ringtones a Public Performance?

These days it seems like you can’t go anywhere without your ears being assaulted by the loud playing of someone’s hot new ringtone, but have you ever considered that the stranger’s ringtone playing in the grocery store line might be treated as a “public performance” under the Copyright Act? 17 U.S.C. § 106(4). A recent case before a New York district court presented the question of “whether a retail wireless company requires a public performance license for musical compositions because it provides ringtones to its customers.” In re Application of Cellco P’ship, No. 09 Civ. 7074 (S.D.N.Y. Oct. 14, 2009). The two parties involved in the case are Verizon Wireless, a wireless company that sells ringtones to its customers, and the American Society of Composers, Authors, and Publishers (ASCAP), an organization that sells licenses for the public performance rights to musical works.

Verizon makes ringtones available for its customers to purchase and download to a cellular phone; once the download is complete, the ringtone appears as a digital file on the customer’s phone. The court emphasized that after a ringtone is downloaded, the customer has substantial control over whether and where the ringtone will play because the customer controls whether the phone is turned on or off, whether the ringtone is set to play to indicate an incoming call, and where the phone is located at any given time. In contrast, Verizon’s only role in playing the ringtone is sending a signal to the customer’s phone to indicate an incoming call – a signal that remains the same whether or not the customer has set a ringtone to indicate incoming calls. The court also noted that, “Verizon does not monitor when and where customers’ ringtones play, and it does not earn any money from ringtones beyond the fee paid for the initial download transaction.”

ASCAP advanced two theories under which Verizon might be held liable for the public performance of musical works. Both theories dealt with whether Verizon’s involvement in the downloading and playing ringtones infringed on ASCAP’s public performance right under 17 U.S.C. § 106(4), requiring Verizon to pay ASCAP a public performance license fee. Section 106(4) provides the copyright holder with the exclusive right “to perform the copyrighted work publicly.”

First, ASCAP argued that Verizon engages in public performance of musical works by downloading ringtones to its customers. Essentially, ASCAP argued that the downloading of a ringtone to a customer’s cell phone amounts to a transmission of the copyrighted musical work to the public. The court easily dispensed with this argument, stating that the focus is upon the potential recipients of the transmission itself, not the potential audience of the underlying ringtone. Here, only the customer is capable of receiving the transmission; thus, the transmission is not made to the public. ASCAP also argued that the transmission of the ringtone to the customer’s cell phone is the first link in a chain of transmissions made to the public. The court also dismissed this argument based on its conclusion that no public performance occurs when a customer uses the ringtone to signal an incoming call. Thus, the court reasoned that no intervening transmissions could be considered a public performance.

Second, ASCAP argued that the playing of a ringtone to signal an incoming call is a public performance of a musical work and that Verizon is either directly or secondarily liable for the resulting copyright infringement. The court addressed the issue of secondary liability first. The court concluded that Verizon could not be held secondarily liable because secondary liability depends upon a finding of direct infringement. Here, the customer is not directly liable for copyright infringement even when the ringtone is played in a public place at a volume level where it can be heard by others. The Copyright Act provides an exception for the performance of musical works where there is no expectation of profit, no fee or other compensation is paid for the performance, and no admission fee is charged. 17 U.S.C. §110(4). The playing of a customer’s ringtone in public neatly fits into this exception. Thus, there is no direct infringement and no possibility of secondary liability.

The court also concluded that Verizon could not be held directly liable for copyright infringement arising out of the playing of ringtones on its customers’ cell phones in public. ASCAP argued that Verizon should be held directly liable because it controls the entire series of steps that causes a customer’s phone to play a ringtone in public. Once again, the court downplayed Verizon’s involvement in this process by pointing out that Verizon’s only role in triggering the playing of the ringtone is sending a signal to a customer’s phone to indicate an incoming call. That signal is the same regardless of whether the customer has set a ringtone to play to indicate incoming calls. The court held that there was no sufficient nexus between Verizon’s conduct and the playing of a ringtone in public to require Verizon to pay ASCAP for a public performance license.

Ultimately, the court granted summary judgment in favor of Verizon on both theories of liability. The outcome is an important victory for Verizon, which stood to pay a hefty fee for a public performance license. While the litigation was pending, Verizon agreed to pay ASCAP a whopping $5 million interim license fee.

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