"In an effort to squeeze additional royalty payments from the Carriers, ASCAP has invited this Court to endorse the remarkable proposition that millions of American consumers break the law every time their mobile phones ring in public. Having branded every public ring of a musical ringtone an "unlicensed ringtone performance," ASCAP then argues that the Carriers must either pay royalties or be held liable for these alleged consumer infringements."The brief goes on further to explain that this lawsuit is in contravention of 17 USC §110(4), which states, "Notwithstanding the provisions of section 106, the following are not infringements of copyright:
"(4) performance of a nondramatic literary or musical work otherwise than in a transmission to the public, without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers, if—Does greed know no end? It appears that the answer is, quite obviously, no.
"(B) the proceeds, after deducting the reasonable costs of producing the performance, are used exclusively for educational, religious, or charitable purposes and not for private financial gain, except where the copyright owner has served notice of objection to the performance under the following conditions:
"(i) the notice shall be in writing and signed by the copyright owner or such owner’s duly authorized agent; and
"(ii) the notice shall be served on the person responsible for the performance at least seven days before the date of the performance, and shall state the reasons for the objection; and
"(iii) the notice shall comply, in form, content, and manner of service, with requirements that the Register of Copyrights shall prescribe by regulation."
[Update]: I was informing my coworker of this news today and she posited that if ASCAP is going to (presumably) charge consumers for using their music as ringtones, then there should be a flat fee. I.e., consumers pay an additional $12.00--(a price chosen at random)--and they get to use select songs for ringtone usage. This was her suggestion at fixing the short-term problem.
I view the issue in terms of a long-term, or -range, problem. Say, for example, you go into a coffee shop, restaurant, bookstore, etc., and you hear a song playing in the background that you really like. You have not previously heard the song, and you do not know the musical artist/group. This prompts you to inquire, and you find out that it's "X" by "Y". What do you do? You go online, or to a record store, and you purchase Y's music. You fall in love with a new band. You go to Y's concerts. You have now invested all of this money because you merely overheard a song and were immediately a fan.
Now, if ASCAP wants to charge consumers (and/or mobile service carriers) more money to play these 30-second song samples as ringtones, the consumers/carriers will be hesitant to purchase any ringtones from here on out. That reduces the chances of people having encounters with otherwise unknown musical artists/groups and their subsequent spending of money on CDs, concert tickets, memorabilia, etc. It's free advertising, ASCAP! Get your heads out of your asses.