Last year, the music industry, more specifically, the American Society of Composers, Authors and Publishers (ASCAP), sued AT&T and Verizon for copyright infringement. Basically, ASCAP claimed that the wireless carriers owed them millions of dollars for the use of actual songs (as opposed to computer-generated tones) as ringtones because each time a phone rang, it constituted a public performance. A judge ruled in favor of the wireless companies, sending a message to the music industry that their time, energy, and money was better spent on improving their methods of distribution rather than on pursuing hundreds of lawsuits in an effort to save their injured and dying industry. Well, that’s what we might have hoped they would take away from the outcome of that lawsuit. But it seems the music industry, this time Broadcast Music, Inc. (BMI), still seems to believe the best way to stay in the continually changing game of music distribution and licensing is to file yet another lawsuit, this time against T-Mobile, for improperly licensing ringback tones. Everyone knows what a ringtone is. It’s the sound your cell phone makes when someone calls you, alerting you to the fact that someone is calling you so you can answer it. A ringback tone is that the person calling you hears while they’re waiting for you to answer. It’s usually just an electronic ringing sound, but carriers and handset makers are now allowing user to customize even what those who call you hear until you answer your cell phone. And yes, some of the ringback tones available to customers are songs. According to the suit BMI filed on December 19, 2009, T-Mobile has, for several years now, failed to sign a ringback license although its competitors have all signed one. So let me get this straight. T-Mobile, the number four carrier in the United States, that needs to do everything it can to keep up with the three companies ahead of it failed to sign an important document allowing it to use artists’ songs as ringback tones, which are one of the most lucrative products any wireless carrier sells? Not only that, it’s been going on for several years, but neither BMI nor any other music royalty group, has taken any action until now? I find both of these things very hard to believe. First, it’s difficult to conceive of the idea that T-Mobile would fail to sign a document—for several years—that gives it the ability to sell something that generates hundreds of thousands, if not millions of dollars in revenue. I can’t see the company’s lawyers forgetting that minor detail. Second, with as litigious as many companies related to the music industry have been over the last several years—even going so far as to target individual consumers for illegal downloads—it’s a little odd that they would wait so long to file a lawsuit against a major wireless carrier, a lawsuit that could potentially generate millions of dollars in back licensing fees and damages. What’s also interesting is that the suit was filed rather quietly, only just now coming to the attention of the press and the blogosphere. Usually when companies feel they’ve been wronged and file suits over it, they orchestrate press coverage, putting out press releases and making statements. BMI didn’t do any of this. And finally, after the verdict that came down last October, why would BMI pursue what most would see as a losing, if not lost battle? Ok, so ringback tones aren’t exactly the same thing as ringtones, and it’s not quite clear exactly what type of licensing T-Mobile allegedly failed to acquire. It would be laughable to think it might also be the public performance licensing since that’s already been addressed in the previous lawsuit. And does it constitute a public performance when just one person hears it as opposed to the numerous people who can hear a ringtone if they’re in close enough proximity to the ringing phone? Once again, the possibility for injury to consumers exists because if BMI manages to win this case, and T-Mobile has to pay millions of dollars in damages, those costs will, at least in part, be passed on to customers. Is it just me, or wouldn’t the music industry be better served by spending all this time and money finding new ways to work with—and profit from—the 21st century rather than being dragged into it kicking and screaming?
Music industry goes after wireless industry–again
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