Should wireless operators have to pay performance royalties for ringtones?

According to a brief filed by ASCAP (.pdf), in support of an ongoing lawsuit against AT&T Mobility, the answer is yes.

The collecting society is arguing that ringtones constitute a public performance, and as such carriers should have to pay licensing fees above and beyond the download fees they pay already.

The Electronic Frontier Foundation notes the dicey nature of this claim. For starters, public performance royalties are generally due only when there is a "direct or indirect" commercial advantage to playing music, such as in a bar or restaurant. Comparing ringtones to such a use is like claiming car companies should pay the performance royalties when people listen to their car stereo with the windows open.

What's more, it tries to put service providers and device manufacturers on the hook for the actions of its users. But since mobile phone users are not infringing on any copyrights when their devices play a ringtone, AT&T or anyone else shouldn't be liable for providing the capability.

UPDATE: ASCAP responds:
"Below are bullet points that ASCAP is sharing with its own membership, to help clarify the misunderstanding that’s spreading around this legal filing:

- ASCAP is in Federal Rate Court with the two largest U.S. wireless carriers.
- It is seeking to ensure that they pay ASCAP members a share of the substantial revenue that these mobile operators derive from content (like ringtones) that uses ASCAP members’ music. This includes the delivery of full track songs, music videos, television content, ringtones and ringback tones.
- All this content generates revenue for the carriers, whether sold a la carte, on a subscription fee basis or bundled with voice, data and messaging services.
- With respect to ringtones, ASCAP seeks to license the wireless carriers’ transmissions of its members’ music.
- ASCAP is not in any way seeking to charge consumers.
- In fact, ASCAP has been licensing wireless carriers and ringtone content providers since 2001. Now, certain carriers want to avoid that payment.
- Wireless carriers make billions of dollars in a variety of ways from ringtones, including per tone charges and multiple additional charges surrounding the transmission of ringtones. These billions are more than sufficient to cover a reasonable payment to ASCAP members and to allow the carriers an ample profit margin – all without passing along any extra fees to their consumer customers.
- Bottom line, ASCAP is striving to license those that make a business of transmitting its members’ music. This holds true for any medium where businesses have been built by using this music as content or a service – whether terrestrial broadcast, satellite, cable, Internet or wireless carriers providing audio and video content.
- To be completely clear, ASCAP’s approach has always been to license these businesses – not to charge listeners/end-users"