In the Summary Judgement, Judge Cote wrote, “Verizon does not recite, render, play, dance or act the ringtone either directly or by means of any device, and thus does not perform the music.”
In other words, the judge ruled that Verizon, the main carrier in this particular suit, isn’t responsible for when and how a ringtone is played on a customer’s phone. In addition, the judge noted that there is no money being generated when a ringtone played, and thus public performance royalties do not apply.
“Verizon’s role in playing a ringtone is that it sends a signal to a customer’s telephone to indicate an incoming call,” the judge wrote. “That signal is the same regardless of whether or not the customer has set her telephone to indicate an incoming call with a ringtone. Verizon does not monitor when and where customers’ ringtones play, and it does not earn any money from ringtones beyond the fee paid for the initial download transaction.’
Commenting for the Electronic Frontier Foundation, which submitted a brief in the case arguing against ASCAP’s demands, Fred von Lohman wrote, “The ruling is an important victory for consumers, making it clear that playing music in public, when done without any commercial purpose, does not infringe copyright.”
For its part, ASCAP expressed disappointment in the decision, but vowed to fight on for the rights of its members: “While ASCAP is disappointed with the ringtones summary judgment issued yesterday by the U.S. District Court, this federal rate court proceeding with mobile providers is about much more than just ringtones.”
For instance, ASCAP is lobbying for legislating that require public performance royalties to be paid for the 30 second samples available on iTunes, Amazon, and other online music download services. The group wants to get paid every time one of those samples are played by a customer browsing said services.