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For whom does your cell phone ring tone toll?

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POSTED July 6, 2009 1:51 a.m.
Rip-off AT&T’s intellectual property and make it available for free and faster than you can text “SUE U” the communication giant would unleash lawyers upon the offender in droves.

Yet turn the tables and distribute the intellectual property of composers for free and AT&T will equate cries of foul to being a wrong number.

The American Society of Composers, Authors and Publishers are trying to convince a federal judge in New York to mandate that AT&T and Verizon pay for public performance licenses whenever a cell phone plays protected music in a public setting. To meet that threshold only one other person besides the recipient of the call needs to hear the ring tone.

While the royalty per play is miniscule, the bottom line isn’t. A study estimates global ring tone sales revenue at $5 billion. They were at $510 million in the United States alone in 2008. All of the money paid goes to the wireless carriers and not a penny to the singer or composer even if they have taken all required steps to legally protect their intellectual interests.

The stage was set for the current legal confrontation in a 2007 court decision that ruled downloading music files from Internet sites could not be construed as a public performance That prompted some wireless providers who were paying for ring tone licenses for public performances to simply stop making payments.

This may seem like a petty issue but is far from it.

At stake is whether someone can simply use technology to undermine legal rights by insisting new forms of communication change the rules of the game so therefore the law doesn’t apply.

This never would have become a problem if carriers had continued to honor reasonable contracts for being allowed to put up songs on websites for customers to download. Let’s face it. There probably is going to be more demand for Michael Jackson’s singing “Thriller” than a background orchestra recording Beethoven’s Fifth for the wireless companies. The more popular the music – read that current which means it is subject to copyright/intellectual property  laws – the higher the sales of ring tones that often sell at $2 or more per song - for wireless carriers. They are pocketing $510 million in the United States alone at extreme minimum expense by using someone else’s protected intellectual property.

The 2007 ruling noted the act of downloading itself isn’t public. It didn’t, however, toss out the principle of public performance which is necessary for royalty payments to kick in.

Some pooh-pooh it by claiming the music industry would have to go after the auto industry next as it is likely someone driving by a car with open windows may hear a protected tune playing on the radio as that would constitute a public performance.  There’s a little problem with that argument. Radio stations are paying for the public performance already.

Of course, some consumers see this as an affront ‘to their rights.” Apparently their rights include being entitled to everything free regardless of the situation.

When Napster was the big thing, one 21-year-old Manteca man was indignant that anyone would even suggest that it was wrong not to pay for songs downloaded from the Internet. His contention was music was meant to be free. The guy – who aspired to be an author – saw things differently when I asked how he would react if he just finished a book and it had been posted in its entirely on-line without his permission effectively undermining his efforts to make a living. He said that wouldn’t be right as it would be stealing his book.

There is no different except for the fact he would be the victim of intellectual property theft and not the musicians.

Simply having a new mode of distribution or communication should not mean you can toss out the laws. Expedia should not be allowed to short change cities on hotel room taxes because they’ve come up with a new way to book hotel rooms.

The same should be true of anything else done on the Internet. The laws of copyright, intellectual property, slander, and defamation should not be watered down because of a misplaced sense that somehow cyberspace is immune from the rules of society.

As it stands now, we have the equivalent of a high-tech Animal Farm where some are created more equal than others because they control the portals of the Internet.
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