27 October 2009

Making ringtones available to customers does not infringe public performance right


This is the outcome of an opinion & order issued by the District Court for the Southern District of New York in Verizon v. American Society of Composers, Authors, and Publishers (ASCAP).

ASCAP is a membership association of more than 360,000 U.S. composers, songwriters, lyricists, and music publishers of every kind of music. ASCAP licenses the public performance right in musical works established in 17 U.S.C. § 106(4).

ASCAP argued that

Verizon Engaged in Public Performances

of musical works when it made ringtones available to its customers. ASCAP contended that Verizon’s transmission of a ringtone to a customer’s cellular telephone was a public performance and thus required a public performance license. In addition, ASCAP argued that Verizon was both directly and secondarily liable for public performances of musical works when customers played ringtones on their telephones.

With respect to the transmission of ringtones to customers, the court found that even while the customer could listen to the download as it was being received, and contemporaneously perceive it as the musical work, that would not constitute a public performance. Regarding Verizon’s liability for its customers’ behaviour, the court opined that, besides the lack of a connection between Verizon’s sales and customers’ use of ringtones,

ASCAP Had Failed

to show any infringement of its members’ rights by the playing of ringtones in public from Verizon’s customers’ telephones. Thus the customers were not liable for copyright infringement, and neither was Verizon.

This court’s order & opinion is of interest and importance when dealing with digitised works. They make fine distinctions in terms of exercising exclusive rights under copyright law and set boundaries  for the infringement thereof.

In my view a very good guidance to practitioners.

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