ASCAP calls music ringtones "performances" and wants you to pay...

In a brief filed by the American Society of Composers, Authors and Publishers (ASCAP) against AT&T Wireless and Cingular Wireless, ASCAP argues that the music ringtones that you have on your cell phone should be considered "performances" and that they should be compensated each time your phone rings. See the first PDF below for the full text of the brief, courtesy of BetaNews.

So not only will these ringtones continue to annoy the hell out of those of us who have to hear them every time someone next to us on the train gets a phone call, but the fact that we are present to be annoyed in the first place might end up causing that person money because of the performance we were forced to endure against our will!!

The absurdity of the logic underlying this brief is hilarious on its face, but I cannot wait to read the ruling from the District Court judge on whether or not this is a legitimate claim. I mean, didn't a jury recently award a seven figure judgement against a single mother for downloaded a few dozens tracks years ago? I wouldn't put it past the screwed up legal system of this country to actually find in favor of ASCAP.

Fortunately, the ASCAP suit has no intention of shaking down normal folks who's only crime is their total lack of consideration for those around them. Rather, the suit seeks to force the wireless providers to pony up millions on their customer's behalf; costs which would simply be passed along to consumers in the form of higher monthly bills. That's right, even those of us who don't use obnoxious ringtones will be forced to subsidize our annoying family, friends and neighbors who do if this suit is successful.

The second brief embedded below was filed Wednesday by the Electronic Frontier Foundation in response to the ASCAP suit. It dismisses the ASCAP suit as "outlandish", but the arguments made to support this dismissal are weak at best. It claims that under the logic of the claim, ASCAP could sue people for listening to their car stereos loudly with the windows open so a passersby could hear the music. However, in that case the music being played is sanctioned by ASCAP because either the radio station broadcasting the song is paying for its distribution. It would be accurate to argue that the music in the car might have been downloaded illegally and played without proper legal rights, but the offense in that scenario would be the illegal file sharing, which would supersede any violation of fair use that may be asserted by the publishers.

After brief consideration I am far from convinced that ASCAP does not have a case, but I am interested to hear what others have to say. Clearly the debate is still fresh so please share your thoughts!

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