

A trio of public interest groups is asking a federal judge to reject a claim that copyright law is violated when a person's cellphone plays "Who Can It Be Now" in public when someone calls, arguing that the songwriters' claims "stigmatize millions of consumers as lawbreakers."

Public Knowledge, the Center for Democracy and Technology and the Electronic Frontier Foundation told a federal court Wednesday that a publicly ringing phone is no different from a person humming a tune in an elevator, listening to music in a convertible, or singing Happy Birthday at a party in the park – all activities that are not considered copyright infringements.

But the American Society of Composers, Authors, and Publishers or ASCAP, a group that collects royalties for artists and songwriters, wants big telecom companies to pay it extra for the ringtones they sell, arguing that the ringtones constitute a "public performance." ASCAP collects royalties anywhere where there is money to found – from internet radio stations to a taco stand with a radio next to the grill to giant arenas to a coffee shop where someone might cover a song on open mic night.

ASCAP's licensing page for ringtones no longer exists on its site, but can be found in the Internet Archive and a model ringtone licensing agreement is available as well.

While ASCAP says it's not going to sue individuals for unauthorized public ringing, the group's arguments (.pdf) are dangerous, the groups argue.

"Whether or not consumers are directly targeted by ASCAP members for royalties or litigation, they will face increased prices, the risk of suit in other contexts, and an artificially depleted set of innovative technologies and services if ASCAP's arguments are accepted here," the groups wrote in a friend of the court brief (.pdf).

Fines for copyright infringement are steep, up to $150,000 per violation. For example, Jammie Thomas, who was busted sharing 24 copyrighted music files on the internet, was fined $1.92 million by a jury in June.

The tiff comes in a suit ASCAP filed against AT&T and Verizon that now pending in a Manhattan federal court. EFF, and the other two groups, are asking the court to throw out the suit against the nation's largest wireless carriers. Now there's some irony for you.

And by the by, you shouldn't be paying for ringtones anyway. Buy the music once and use it how you like– though that's often easier said than done given how this country's mobile carriers treat your mobile device as if it were theirs.

Photo: Flickr/RedMorris

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