Verizon Wireless and AT&T Mobility have successfully rebuffed an attempt by ASCAP to categorize a ringtone as a public performance, according to court paperwork obtained by Digital Music News on Wednesday. In separate summary judgments issued by US District Court judge Denise Cote and filed October 14th, a ringtone was firmly distanced from a payable performance. "When a ringtone plays on a cellular telephone, even when that occurs in public, the user is exempt from copyright liability, and Verizon is not liable either secondarily or directly," Cote opined, while also offering a similar result for AT&T.
It sounds rather obvious, based on common sense, though a number of tests were applied to define ringtone playback as a performance-free event. Actually, ASCAP attempted to prove liability across a number of scenarios, including the actual download of the purchased ringtone and subsequent playback during an incoming call. On top of that, both the caller and carrier were assumed liable, according to the logic of ASCAP.
But Cote regarded the argument as a stretch, and firmly handed the summary judgment to the defendants. "ASCAP has not shown any infringement of its members' rights by the playing of ringtones in public from Verizon's customers' telephones," the decision continued. "The customers are not liable for copyright infringement, and neither is Verizon," Cote continued.
Both carriers submitted requests for summary judgment on May 22nd, though earlier reports suggested an interim payment between the parties. Meanwhile, ASCAP is also chasing performance royalties on other formats, including paid downloads of sound recordings. One source pointed to a possible pickup of the issue through legislative channels, for both downloads and ringtones.
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