Letter from AmeriKat II: copyright

Every time a phone rings, ASCAP won’t get its wings, judge decides

When someone calls the AmeriKat, Led Zeppelin’s Misty Mountain Hop blasts out (much to the annoyance those around her) on her cellphone. If you are like the AmeriKat and have an attention-seeking ringtone on your phone, the American Society of Composers, Authors and Publishers (ASCAP) wants you to pay a royalty every time your phone rings. ASCAP represents owners of the copyright in the musical composition only, opposed to the sound recordings, and therefore only licences the public performance right in musical works.

Thankfully last Wednesday District Judge Denise Cote dismissed ASCAP’s claim ruling in favour of Verizon’s application for summary judgment. ASCAP’s case brought earlier this year claimed that service providers like Verizon engage in public performance of musical works when it downloads ringtones to customers and when those customers’ phones ring. ASCAP alleged that Verizon is both directly and secondarily liable for these performances.

By way of information, the Transmission Clause (Section 101 of the Copyright Act) states as follows:

“To perform or display a work “publicly” means —
(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or
(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, 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.”

District Judge Denise Cote made the following points:

1. The Transmission Clause speaks of those “capable of receiving the performance”, not of those “capable of receiving the transmission”. For the purposes of section 101, it is the “transmission of a performance that is itself the performance”. Because only one subscriber is capable of receiving the transmission, the transmission is not made to the public and is not covered by the Transmission Clause. This analysis is supported by the Court of Appeals’ decision in Cartoon Network v CSC Holdings (2008).

2. Judge Cote cited a decision of Judge Connor, who arrived at the same decision by different reasoning. In U.S. v ASCAP (2007) Judge Connor started with the premise that the Transmission Clause required that a “performance” of the work had to be transmitted. Then, “in order for a song to be performed, it must be transmitted for contemporaneous perception.” Since downloading or copying took place from one device or computer to the other without any “perceptible rendition”, the transaction was “a data transmission rather than a musical broadcast” or performance. This act should therefore be more properly categorized as a reproduction. Thus, in order to succeed in this complaint, the plaintiffs would have to show a causal link between the downloading and the public performance.

3. Under section 110(4) performances of any musical work “otherwise than in a transmission to the public, without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters or organizers if there is no direct or indirect admission charge” are exempt from copyright infringement. At the heart of this exception is whether or not there is an expectation of profit.

4. Judge Cote held that when a ringtone audibly rings in public

“Verizon customers are not playing the ringtones for any “commercial advantage”; they do not get paid any fee or compensation for these performances; and they do not charge admission. In sum, customers do not play ringtones with any expectation of profit. The playing of a ringtone by any Verizon customers in public is thus exempt under section 110(4) and does not require them to obtain a public performance license.” (at page 24)

5. Given that Verizon’s customers are not infringers of ASCAP’s rights in the public performance of musical works it follows that Verizon is therefore not secondarily liable for their infringement.

6. ASCAP’s reliance on Arista Record LLC v Usenet.com, Inc (2009) failed because that case concerned a defendant “actively engaged” in “the exchange of content between users who upload infringing content and users who download such content.” Such conduct was not present here.

7. Verizon does not receive revenue from publicly played ringtones. The only revenue Verizon makes is in selling ringtones, for which it already pays a mechanical licensing fee in connection with those sales.

The AmeriKat joins Fred von Lohmann, a copyright lawyer with the Electronic Frontier Foundation (EFF, an amicus curae in the case) in welcoming Judge Cote’s decision. Lohmann stated that

“The ruling is an important victory for consumers, making it clear that playing music in public, when done without any commercial purpose, does not infringe copyright.”