The Daily Swarm

Ars Technica:

…the ringtone argument was made by the American Society of Composers, Authors, and Publishers (ASCAP) earlier this year when it sued certain mobile carriers in the US in an attempt to force them to fork over royalties every time a customer’s ringtone is played. Even though the carriers were already paying for download rights to the songs, ASCAP argued that each ring was a “performance” and therefore those download payments weren’t enough.

This was because some ringtone providers did at one time pay for performance rights—some continue to do so, but others did not, due to an earlier court decision in a case involving AOL. The ASCAP felt the decision was wrong and wouldn’t apply in this case because of some differences between normal music downloads and ringtones. The Electronic Frontier Foundation, as well as a number of other interested parties from the music and technology industries, responded by arguing that ASCAP‘s complaint ignored some major areas of the legal code, likening the situation to demanding royalties when someone plays the radio with the car windows down.

In her ruling, US District Judge Denise Cote pointed out that the carrier has no way to control when a ringtone is being played and earns no revenue when it happens—customers decide when and where their phones can ring, and they turn the phone on or off without the carrier’s consent. She also said that performing a work publicly usually means that it must take place in a public space where a “substantial number of persons outside of a normal circle of its social acquaintances is gathered.”