Advanced Copyright Issues on the Internet - Fenwick & West LLP

“[w]here a transmission is of a digital file rather than a performance that can becontemporaneously observed or heard, and where that transmission is but a link in a chain to adownstream public performance, it may be that the transmission is not an act of infringement forwhich the transmitter is directly liable under § 106(4), but rather an act that may subject thetransmitter to contributory liability under § 106(4) for the infringement created by any ultimatepublic performance.” 253 That could not be the case here, however, because the court concludedthat there was no qualifying public performance under § 106(4) when the customer used theringtone upon an incoming call.Specifically, the court ruled that, when a ringtone plays on a cellular telephone, evenwhen that occurs in public, the user is exempt from copyright liability under Section 110(4) ofthe copyright statute, which exempts any “performance of a nondramatic literary or musicalwork otherwise than in a transmission to the public, without any purpose of direct or indirectcommercial advantage and without payment of any fee or other compensation for theperformance to any of its performers, promoters, or organizers, if [] there is no direct or indirectadmission charge.” 254 The court held that on occasions when Verizon customers had activatedtheir ringtones and the telephones rang in the presence of members of the public at a level whereit could be heard by others, such playing of the musical works embodied in the ringtonessatisfied all of the requirements of the §110(4) exemption: Verizon customers were not playingthe ringtones for any commercial advantage, they did not get paid any fee or compensation forthose performances, and they did not charge admission. Accordingly, there was no non-exemptpublic performance by the users of the ringtones to which Verizon could be secondarily liable. 255The court also rejected ASCAP’s argument that Verizon was directly liable for itselfengaging in a public performance of copyrighted musical works when ringtones played in publicon customers’ cell phones because it controlled the entire series of steps that allowed andtriggered the cellular telephone to perform the musical works in public. The court noted thatVerizon’s only role in the playing of a ringtone was the sending of a signal to alert a customer’stelephone to an incoming call, and that signal was the same whether the customer haddownloaded a ringtone or not, whether she had set the phone to play a ringtone upon receiving acall or not, whether she was in a public setting or not, and whether she had the ringtone volumeturned high or low. And it was the caller, not Verizon, who initiated the entire process that ledto the playing of the ringtone. Accordingly, Verizon did not engage in activity constitutingdirect liability, even if the ringing of its customers’ phones in public constituted publicperformances. 256253254255256Id. at 374 n.14.Id. at 374 (quoting 17 U.S.C. § 110(4)).Id. at 375. Nor, in order to avoid secondary liability, was Verizon obligated to show that each and everycustomer would be able to meet its burden of proof that its performance of ringtones in public satisfied the §110(4) exemption. “The law does not impose an insurmountable burden on Verizon to show precisely howeach of its customers has actually used her telephone, but only requires it to demonstrate that customers as agroup do not exhibit any expectation of profit when they permit the telephones to ring in public.” Id. at 376.Id. at 376-79.- 71 -