ASCAP wants money for your ringtone

Not only do people in your vicinity fantasize about smacking you for that annoying "Play The Funky Music" ringtone you've been rocking since dirt was invented, ASCAP says that every time your phone rings, you're executing a public performance of the tune. And they want money.

ASCAP -- the American Society of Composers, Authors and Publishers -- has advanced the matter to (PDF available here) Southern New York's District Court, suing AT&T and Verizon over royalties the group says are due for content using music. That can mean, as ASCAP tells its members in a statement on its site, "delivery of full track songs, music videos, television content, ringtones and ringback tones." In other words, if your phone audibly rings, you've entertained someone and now you must pay.

Or someone must pay, anyway. In its court filing, ASCAP says it's not looking to bill individual consumers; they plan no RIAA-style pogroms against the general public, even if the group says consumers are what are called in such cases "primary infringers." Instead, they want mobile providers to pay. (That this would likely result in higher charges to consumers... well, how would that be ASCAP's problem?)

Oh please, said the Electronic Frontier Foundation in an amicus brief (PDF available here) filed Wednesday. Both the RIAA and service providers such as DirecTV have shown that they're happy to shake down individuals for claimed infringement if it suits their needs, says the brief -- and besides, this is hardly a "performance" situation.

In a statement to the press, the EFF's Fred von Lohmann -- characterizing ASCAP's claims as "outlandish" -- notes that by the logic of the suit, the group could charge for music playing on a car radio and overheard by passersby through an open window. The copyright law the group is invoking doesn't apply to performances "without any purpose of direct or indirect commercial advantage" -- humming a song as one walks down the street or playing the radio outside while you do yard work, for instance, aren't copyright violations. A ringing phone, says EFF, is in the same category. If it's not a copyright infringement, the mobile-phone providers in the suit can't have "secondary liability" for it; therefore, says EFF, no dice.

ASCAP, which was founded in 1913 (just four years after the landmark 1909 changes to copyright law) to ensure fair recompense for composers, has gotten something of a reputation in recent years for over-enthusiastic pursuit of their copyright claims against such entities as your neighborhood bar and, infamously, the Girl Scouts of America.