• October 18, 2009

A federal judge in New York has ruled that mobile phone carriers need not pay performance royalties to the American Society of Composers, Authors and Publishers for ringtones. U.S. District Court Judge Denise Cote agreed with Verizon Wireless that transmitting a ringtone to a cell phone user "does not constitute a performance of a musical work 'publicly.'" Therefore, she ruled that Verizon, AT&T and other cell phone companies need not pay ASCAP additional royalties.

Cote's ruling ends a lawsuit brought by ASCAP against AT&T and Verizon Carriers already pay ASCAP royalties of 24 cents per song, but the organization argued in court that it was entitled to additional performance fees. Cote rejected ASCAP's argument, ruling last week that ringtones don't require public performance licenses because "customers do not play ringtones with any expectation of profit."

The case drew the attention of digital rights advocates, who urged the court to reject ASCAP's claim. In a friend-of-the-court brief, the Electronic Frontier Foundation, Center for Democracy & Technology and Public Knowledge argued that a ruling in ASCAP's favor could leave consumers vulnerable to copyright infringement claims whenever the ringtones they have purchased play in public.

EFF attorney Fred von Lohmann praised Cote's decision. "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," he wrote in a blog post. "This ruling should also protect consumers who roll down their car windows with the radio on, who take a radio to the beach, or who sing 'Happy Birthday' to their children in a public park." --Wendy Davis