Federal District Court Rules Ringtones Not Public Performance
By Debbie Rosenbaum – Edited by Eric Engle
In re: In the Matter of the Application of Cellco Partnership d/b/a Verizon Wireless, Case Nos. 09-cv-07074 & 41 Civ. 1395 (S.D.N.Y. Oct. 14, 2009)
Opinion (Hosted by EFF)
The Southern District of New York has ruled that cell phone ringtones do not constitute a public performance, and thus mobile phone carriers do not need to pay performance royalties under the Section 110(4) of the Copyright Act. The court also dismissed the argument that cell phone carriers publicly perform when they reproduce and download a ringtone to a phone.
United States District Judge Denise Cote dismissed the music industry argument that a ringtone is like a concert hall when it begins ringing/playing in public, instead determining that playing music in public, when done without any commercial purpose, does not infringe copyright. In so holding, the court ruled that cell phone users are not liable for royalty payments and that carriers are not secondarily liable. Judge Cote reasoned that the exemption Section 110(4) applies because cell phones announce phone calls and are not sources of commercial public entertainment.