It isn't often that you find AT&T and the Electronic Frontier Foundation in agreement, but consensus has been reached on one matter: ASCAP's demand that wireless companies pay it license fees for ringtones is, well, ridiculous.

On Wednesday EFF called the move "outlandish" and "a ploy to squeeze more money out of the mobile phone companies." The advocacy group filed a friend of the court brief with the United States District Court for the Southern District New York this week, which is hearing the dispute between ASCAP, AT&T, and Verizon over whether the telcos have to pay the music licensing body royalties for wireless ringtones. Joining the amicus brief are Public Knowledge and the Center for Democracy and Technology. Meanwhile CTIA - The Wireless Association, to which the big telcos belong, has also filed an amicus brief in the case.

Limiting your potential

ASCAP makes no secret of the fact that it's fighting this battle. About ten days ago, the association published a statement on its website warning members that they may "see or read accounts of our legal actions from those arguing to limit your potential income." Here are the facts, ASCAP says: the organization is in "rate court" with the two biggest wireless companies.

"With respect to ringtones, ASCAP seeks to license the wireless carriers' transmissions of your music. ASCAP is not seeking to charge consumers," the release continues. "In fact, ASCAP has been licensing wireless carriers and ringtone content providers since 2001. Now, the carriers want to avoid that payment."

Apparently some mobile operators were indeed forking over ringtone fee loot to ASCAP for a while, at a rate of 2 percent of revenue. Then New York's Southern District Court—which hears many of these sorts of cases—issued the so-called "download decision" in April 2007. That ruling was prompted by ASCAP's fight with RealNetworks and AOL over copyright fees for downloadable music. The question before the court was whether "the downloading of a digital music file embodying a particular song constitutes a 'public performance'" (which is what ASCAP licenses) as understood by the Copyright Act.

The Southern District ruled that it did not. Downloads are not intended for "contemporaneous perception," the judges noted. "It is not the availability of prompt replay but the simultaneously perceptible nature of a transmission that renders it a performance under the Act." In other words, music downloads by consumers are categorically different from playing music in a restaurant for all patrons to hear.

With that ruling, AT&T made its move, filing a Motion for Summary Judgment from the court on whether the download decision also applies to ringtones. ASCAP promptly filed a lengthy rebuttal, found and published by EFF.

Me and my ringtones

Ringtones are "performances," ASCAP contends, because they "ultimately always result in a performance to the public" as understood by the Copyright Act. AT&T encourages consumers to buy the tunes to "express themselves," to use ringtones "as a way of gaining recognition in the outside world," to give their phones personality, or to "express support for particular artists or sports teams." All this implies that the user will, in the end, broadcast the ringtone in public places.

"When a ringtone plays to signal an incoming call, it is obviously a performance," the filing declares. And it doesn't have to be heard by other people every time for it to count as such. "AT&T's ringtones are clearly capable of reaching the public and are expected to do so."

We're not mollified

Needless to say, EFF et al's amicus filing calls ASCAP's arguments specious and dangerous, potentially making every consumer a copyright violator whenever they receive a mobile call on the street. Section 110(4) of the Copyright Act, EFF contends, makes it clear that a consumer does not engage in a public performance when, for example, she:

� Rolls down the window of her car while the stereo is playing;

� Sings "Happy Birthday" at a private gathering in a public park;

� Hums a tune while walking on a public sidewalk; or

� Listens to music on the radio while sitting on the beach.

"ASCAP has attempted to mollify consumers with press statements that its members would never pursue individuals for these everyday activities," EFF concludes. "But ASCAP's forbearance is hardly an adequate substitute for the absolute statutory privilege enjoyed by consumers pursuant to Section 110(4)." And even if cell phone users are never dinged for "public ringing," they'll surely pay higher prices for ringtones if ASCAP wins this case.

Similarly, CTIA takes issue with the public performance argument. "The playing of a ringtone does not involve a transmission," the trade group says, "is not at all akin to a public concert or dance, and is no more a public performance than the commonplace act of playing a CD in a car with the windows (or top) down."

So now it's up to the "rate court," aka the Southern District of New York, to sift through all these takes on "performance" and come up with a wireless fee policy for ringtones. In the meantime, savor the moment—one of the few when you'll find AT&T and these public interest groups on the same legal page.