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We’ve all gotten a chuckle when a cell phone blares a ringtone at a meeting or in a quiet elevator, but does that scenario constitute a public performance?

The American Society of Composers, Authors and Publishers, the licensing organization that collects royalties on behalf of its musician and artist members, thinks so and wants mobile phone carriers to pay an additional royalty for the ringtones they sell. As part of several lawsuits against AT&T, Verizon and other wireless carriers, ASCAP claimed that ringtones constitute public performances and require the carriers to have separate licenses. ASCAP argued that ringtones implicate performance rights under the Copyright Act as they are downloaded over the Internet and as they play in a public place.

Wireless carriers already pay a royalty fee to music publishers—not ASCAP—to sell the music as ringtones.

Last fall, in U.S. v. ASCAP, a federal judge sitting in the Southern District of New York sided with the mobile phone carriers and denied ASCAP’s request.

Before music went digital there were a limited number of situations that would trigger public performance licenses. Radio airplay and transmission in nightclubs are two examples, says Lee Knife, general counsel and director of business and legal affairs for the Digital Media Association.

But licensing rules are changing because the ways that people buy and listen to music are shifting. And everyone is trying to stake their claim, Knife says, including ASCAP.

“Every time there was a transmission of a download it would be a violation,” Knife says. “What we saw here was the potential for a very dangerous precedent to be set.”

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