In re Application of CELLCO PARTNERSHIP d/b/a Verizon Wireless.
Related to United States of America, Plaintiff,
v.
American Society of Composers, Authors, and Publishers, Defendant.
United States District Court, S.D. New York.
*366 David Leichtman, Hillel Parness, Eleanor Lackman, Lovells LLP, Richard Reimer, Christine Pepe, American Society of Composers, Authors, and Publishers, New York, NY, for American Society of Composers, Authors, and Publishers.
Bruce Joseph, Andrew McBride, Michael Sturm, Wiley Rein LLP, Washington, DC, for Cellco Partnership d/b/a Verizon Wireless.
Michael Salzman, Jessica Feldman, Hughes Hubbard & Reed LLP, Marvin Berenson, Joseph DiMona, John Coletta, Broadcast Music, Inc., New York, NY, for Amicus Curiae Broadcast Music, Inc.
Andrea Williams, CTIAThe Wireless Association, Washington, DC, Bruce Keller, Jeffrey Cunard, Michael Potenza, Richard Lee, Debevoise & Plimpton LLP, New York, NY, for Amicus Curiae CTIA The Wireless Association.
Gary Shapiro, Consumer Electronics Association, Arlington, VA, for Amicus Curiae Consumer Electronics Association.
Lee Knife, Digital Media Association, Washington, DC, for Amicus Curiae Digital Media Association.
Michael Elkin, Thomas Lane, Winston & Strawn, New York, NY, Fred von Lohman, Electronic Frontier Foundation, San Francisco, CA, for Amici Curiae Electronic Frontier Foundation, Public Knowledge, and Center for Democracy and Technology.
Heidi Salow, DLA Piper, Washington, DC, for Amicus Curiae Internet Commerce Coalition.
C. Paul Spurgeon, Society of Composers, Authors, and Music Publishers of Canada, Toronto, Ontario, Canada, Al Daniel, Jr., Toby Butterfield, Christopher Marino, New York, NY, for Amicus Curiae Society of Composers, Authors, and Music Publishers of Canada.
Kenan Popwell, Society of European Stage Authors & Composers, Inc., New York, NY, John Beiter, Zumwalt, Almon & Hayes PLLC, Nashville, TN, for Amicus Curiae Society of European Stage Authors & Composers, Inc.
Jonathan Banks, United States Telecom Association, Washington, DC, for Amicus Curiae United States Telecom Association.
OPINION & ORDER
DENISE COTE, District Judge:
This summary judgment motion presents the question of whether a retail wireless communications company requires a public performance license for musical compositions because it provides ringtones to its customers. For the following reasons, it does not.
BACKGROUND
Cellco Partnership d/b/a Verizon Wireless ("Verizon") began this proceeding by filing its January 23, 2009 application for a determination of reasonable fees for a blanket license for the public performance of musical compositions in the repertory of the American Society of Composers, Authors, and Publishers ("ASCAP").[1]*367 Verizon is a retail wireless communications company. ASCAP is a performing rights organization that licenses on a non-exclusive basis the non-dramatic public performance rights to musical works.[2]
Verizon sells ringtones, amongst other products and services. A ringtone is "a digital file of a portion of a musical composition or other sound" that is designed to be played by a customer's telephone in order to signal an incoming call in the same manner as would a telephone ring. A customer can download a ringtone either from the internet or through a Verizon telephone. To obtain a ringtone from Verizon, a customer must purchase it and download it to a cellular telephone.[3] Downloading a typical thirty-second ringtone takes a matter of seconds. A ringtone cannot be played while it is being downloaded. After a ringtone has been downloaded, a digital file appears on the customer's telephone. The customer can listen to the downloaded ringtone by clicking on the digital file, but only after it has been fully downloaded.
After a ringtone is downloaded, the underlying audio file is stored on the telephone. A customer can then set her telephone to play the ringtone when her telephone receives an incoming call. The customer determines whether and where a ringtone will play when she receives a call by controlling whether her telephone is on or off, whether the telephone is set to indicate an incoming call by playing a ringtone or by some other method (e.g., normal ringing, vibrating), and where the telephone is at any given point. When a ringtone rings, the music or sound clip plays from the file stored on the telephone.
Verizon's role in playing a ringtone is that it sends a signal to a customer's telephone to indicate an incoming call. 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.
On May 22, 2009, Verizon filed this motion for summary judgment on the question of whether it must pay public performance licensing fees for ringtones.[4]*368 Verizon filed its reply on June 25. On July 22, this case was reassigned to this Court. Parties were given leave to file supplemental letters discussing recent developments in the law, which became fully submitted on August 28.
DISCUSSION
ASCAP argues that Verizon engages in public performances of musical works when it downloads ringtones to customers. In addition, ASCAP argues that Verizon is both directly and secondarily liable for public performances of musical works when customers play ringtones on their telephones. Verizon seeks summary judgment in its favor on each theory of liability.
Summary judgment may not be granted unless all of the submissions taken together "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination, the court must view all facts in the light most favorable to the non-moving party. Celotex Corp. v. Catrett,
The protection given to copyrights is wholly statutory. Sony Corp. of Am. v. Universal City Studios, Inc.,
The rights at issue in this litigation constitute only one of the many rights created by the copyright statute. To begin with, there are separate bundles of rights in a musical composition and in its embodiment in a sound recording. "Copyright protection subsists ... in original works of authorship fixed in any tangible medium of expression," including "musical works" and "sound recordings."[5] 17 U.S.C. § 102. "Sound recordings and their underlying musical compositions are separate works with their own distinct copyrights." Palladium Music, Inc. v. EatSleepMusic, Inc.,
A copyright owner may hold as many as six exclusive rights. They are the rights
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.[7]
17 U.S.C. § 106 (emphasis supplied).
Each of these six rights may be owned and conveyed separately. 17 U.S.C. § 201. The rights to reproduce and to distribute musical works, see 17 U.S.C. § 106(1) and (3), which are often referred to as mechanical rights, are governed by 17 U.S.C. § 115. See 9 Melville B. and David Nimmer, Nimmer on Copyright Appendix 16 (2009) (Chapter IX of Second Supplementary Register's Report on the General Revision of the U.S. Copyright Law (1975), entitled "Compulsory License for Making and Distributing Phonorecords ("The Mechanical Royalty')"). Disagreements over license fees for mechanical rights in a musical work are resolved by Copyright Royalty Judges, 17 U.S.C. § 115(c)(3)(C), and are not at issue here. It is only the fourth right in 17 U.S.C. § 106 that will be addressed in this Opinion.
ASCAP licenses only the public performance right in musical works established in 17 U.S.C. § 106(4). Buffalo Broad. Co., Inc. v. Am. Soc'y of Composers, Authors and Publishers,
*370 Several of the terms relevant to a construction of § 106(4) are defined in 17 U.S.C. § 101. Under § 101, to "perform" a work means "to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible." To perform a work "publicly" means:
(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or
(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.
17 U.S.C. § 101 (emphasis supplied). To "transmit" a performance is "to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent." Id.
The Copyright Act includes exemptions for certain public performances of copyrighted music. Subsection 110(4) of Title 17 provides that the following performances do not constitute a public performance for the purposes of the Copyright Act and therefore do not require a public performance license:
[any] performance of a nondramatic literary or musical work otherwise than in a transmission to the public, without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers, if [] there is no direct or indirect admission charge....
17 U.S.C. § 110(4).
To be held liable for direct infringement of the public performance right, a defendant must have engaged in conduct that is volitional or causally related to that purported infringement. Cartoon Network LP v. CSC Holdings, Inc.,
A defendant may also be secondarily liable for another's public performance of a copyrighted musical work. While "[t]he Copyright Act does not expressly render anyone liable for infringement committed by another," it "does not preclude the imposition of liability for copyright infringements on certain parties who have not themselves engaged in the infringing activity." Sony,
1. Downloading Ringtones
ASCAP contends that Verizon's transmission of a ringtone to a customer's cellular telephone requires a public performance license. While it is undisputed that the act of reproducing and distributing a ringtone implicates the mechanical rights in a musical work created by the Copyright Act, ASCAP asserts that the transmission of a ringtone to a customer's cellular telephone is also a public performance of a musical work governed by 17 U.S.C. § 106(4). Based on undisputed facts, however, Verizon has shown that its transmission of a ringtone to a cellular telephone customer does not constitute a performance of a musical work "publicly," as that term is defined in 17 U.S.C. § 101.
The parties agree that this question does not implicate the first clause of the definition of the term "publicly" contained in § 101, and focus their arguments instead on its second clause (hereinafter "Transmission Clause"), which reads in pertinent part:
(2) to transmit or otherwise communicate a performance ... by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.
17 U.S.C. § 101. Boiled down to its essence, the question becomes whether in downloading a ringtone to a customer's cellular telephone Verizon transmits a performance of the work to the public.
In analyzing whether the transmission to a cellular telephone qualifies as a transmission of the work to the public, the focus is on the transmission itself and its potential recipients, and not on the potential audience of the underlying work or ringtone that rests on Verizon's file servers.[8]Cartoon Network,
Because the Transmission Clause "directs us to identify the potential audience of a given transmission, i.e., the person `capable of receiving' it, to determine whether that transmission is made `to the *372 public,'" id. at 139, and because one may look downstream and consider whether the transmission of the ringtone to the cellular telephone is but one link in a chain of transmissions to the public, id. at 137, ASCAP also urges that the downloading of the ringtone is but the first link in a chain of transmission to the public. As described below, however, there is no qualifying public performance under § 106(4) when the customer uses the ringtone to alert her to an incoming call. Thus, even when the downloading of a ringtone is considered as the first link in a chain of transmissions, it does not qualify as a public performance.[9]
This analysis flows from the Court of Appeals' recent decision in Cartoon Network,
While Cartoon Network was not required to address the public performance right in the context of the transmission of the program to the RS-DVR, the act most analogous to the downloading of a ringtone,[10] its discussion of the Transmission Clause has important ramifications for that step in the transmission to the customer as well.[11] Indeed, in its discussion of National Football League v. PrimeTime 24 Joint *373 Venture,
Over a year before the decision in Cartoon Network was issued, the Honorable William C. Conner, who presided over this litigation with distinction for many years, used a different analysis of the Transmission Clause to arrive at a similar result. He held that downloading music from server computers (operated by AOL LLC and others) to a client computer was not a public performance of a musical work. United States v. Am. Soc'y of Composers, Authors and Publishers,
Both the Cartoon Network decision and the Download Decision required the plaintiff to show a linkage between the transmission and a public performance. The application of the line of analysis used in each case, would have led to the same finding in both cases, to wit, that the respective transmissions were not covered by the Transmission Clause because the transmissions did not cause a public performance to take place. And, although Cartoon Network relies on the meaning of the phrase "the public" and the Download Decision explores the meaning of the term "performance," application of the analysis used in either decision would result in an identical conclusion here: the downloading of a ringtone is not a public performance encompassed by the Transmission Clause.
In sum, where there is a transmission of the performance of a musical *374 work directly to the public, that transmission is governed by § 106(4). Where the transmission itself does not allow the public to perceive the performance as a work that is being rendered, but is only an intervening transmission in the downstream delivery of the performance to the means by which the public will be capable of receiving the performance, then that transmission may also be governed by § 106(4).[14] ASCAP has failed to raise a question of fact that the downloading of a ringtone from Verizon to a customer's cellular telephone is a public performance of a musical work under either branch of this analysis.
ASCAP's effort to escape the implications of the foregoing analysis fails. ASCAP argues that ringtones are "capable of" being heard during the downloading process. ASCAP does not contend, however, that a Verizon customer can actually listen to a ringtone while she is downloading it; it acknowledges that the ringtone cannot be played before the transmission is concluded because Verizon has constructed the transmitted file "that way." ASCAP's argument amounts to a claim that Verizon could change or enable its technology to allow a user to listen to a ringtone while downloading it. This argument is not addressed to the technology at issue in this case and does not present a factual context that is ripe for review. In any event, the Cartoon Network decision presents an insurmountable impediment to this argument. Even if the customer could listen to the download as it was being received, and contemporaneously perceive it as the musical work, that would not constitute a public performance.
2. Playing Ringtones
ASCAP next argues that there is a public performance of musical works when cellular telephones play ringtones to signal incoming calls. It contends that Verizon is either directly or secondarily liable for copyright infringement for these public performances. Verizon has shown that it is entitled to summary judgement as well on these claims. When a ringtone plays on a cellular telephone, even when that occurs in public, the user is exempt from copyright liability, and Verizon is not liable either secondarily or directly.[15]
a. Secondary Liability
ASCAP asserts that Verizon is secondarily liable when a ringtone plays. Secondary liability depends upon a finding that there has been a direct or primary infringement, and Verizon has shown that the cellular telephone user is not liable for copyright infringement even when the telephone rings in a public setting.
As already noted, the Copyright Act exempts from 17 U.S.C. § 106(4) those performances of a musical work that occur within the "normal circle of a family and its social acquaintances," 17 U.S.C. § 101 (definition of "publicly"), and further exempts
[any] performance of a nondramatic literary or musical work otherwise than in a transmission to the public, without any *375 purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers, if [] there is no direct or indirect admission charge ....
17 U.S.C. § 110(4).
The expectation of profit is important to determining whether a performance fits within the § 110(4) exemption. If a performance occurs with no expectation of profit, it might qualify for this exemption if all of the statutory requirements are met; if, however, a performance occurs with the expectation of profit, even if no profit is made, the performance may not fall within this exemption. Herbert v. Shanley Co.,
The playing of ringtones fits comfortably within these statutory exemptions. When a ringtone plays only in the presence of the "normal circle of a family and its social acquaintances" this performance would not count as a public performance under 17 U.S.C. § 101. On occasions when Verizon customers have activated their ringtones, the telephone rings in the presence of a broader audience, and it rings at a level to be heard by others, that playing of a musical work satisfies all of the requirements of the § 110(4) exemption: Verizon customers are not playing the ringtones for any "commercial advantage;" they do not get paid any fee or compensation for these performances; and they do not charge admission. In sum, customers do not play ringtones with any expectation of profit. The playing of a ringtone by any Verizon customers in public is thus exempt under 17 U.S.C. § 110(4) and does not require them to obtain a public performance license.
ASCAP argues that the § 110(4) exemption should not apply since "the customer benefits by purchasing a product and service it desires." This personal, non-monetary benefit does not vitiate the application of the § 110(4) exemption. The only commercial advantage that ASCAP identifies as being associated with the playing of a ringtone is a commercial benefit to Verizon, specifically, the possibility that others may be encouraged to purchase ringtones when they hear ringtones.[16] A potential commercial advantage to Verizon, however, does not suggest that its customers may not qualify for the § 110(4) exemption. To paraphrase the Sony Court, "[o]ne may search the Copyright Act in vain for any sign that the elected representatives of the millions of people" who own cellular telephones "have made it unlawful" to allow that telephone to ring in a public setting. Sony,
The fact that cellular telephone users are not infringers of ASCAP's rights in the public performance of musical works defeats ASCAP's claim that Verizon is secondarily *376 liable for their infringement. "[T]he concept of contributory infringement is merely a species of the broader problem of identifying the circumstances in which it is just to hold one individual accountable for the actions of another." Id. at 435,
ASCAP argues that Verizon is secondarily liable for its customers' public performances because it has failed to show that "each and every customer would be able to meet its burden of proof to show that his or her `performance' of ringtones would satisfy the § 110(4) exemption." While a proponent of an affirmative defense ordinarily bears the burden of proving that it applies, Infinity Broad. Corp. v. Kirkwood,
b. Direct Liability
The heart of ASCAP's opposition to this motion for summary judgment rests on its contention that Verizon itself engages in a public performance of copyrighted musical works when ringtones play in public on customers' cellular telephones. ASCAP's theory of direct liability for infringement is that Verizon "controls the entire series of steps that allow and trigger" the cellular telephone to perform the musical work in public. It contends that these actions constitute the performance "publicly" of a musical work under both prongs of § 101's definition of the term "publicly," i.e., that it is both a performance of a musical work "at a place open to the public," see id. at (1), and a communication of a performance to the public, see *377 id. at (2). Insofar as the second prong is concerned, ASCAP admits that Verizon does not "transmit" a musical work when a cellular telephone rings in public,[20] it relies instead on that prong's alternative requirement that the defendant "transmit or otherwise communicate a performance ... to the public." Id. (emphasis supplied).[21]
ASCAP identifies the following actions by Verizon as constituting the control over the performance process which renders Verizon liable for direct infringement: Verizon supplies the ringtones; it encourages customers to purchase ringtones for public playback; it transmits the ringtones to the subscribers' telephones; it places a code on the ringtones that prevents customers from forwarding them; it provides and supports a cellular telephone network; it "commands, enables and controls" the playing of ringtones "by triggering the tones when calls are received;" and it is able to terminate a customer's cellular telephone service at any time.
ASCAP has failed to identify an issue of fact which prevents entry of judgment in Verizon's favor on ASCAP's theory that Verizon is directly liable for infringement of § 106(4) when ringtones downloaded from Verizon play in public on a Verizon telephone.[22] 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, as that term is defined in the Copyright Act. 17 U.S.C. § 101. Nor does Verizon engage in conduct that can be said to cause a ringtone to be played in public. See Cartoon Network,
The other components of Verizon's putative "control" over the playing of the ringtone in public are too attenuated from that "performance" to render Verizon liable.[23]*378 These include its operation of a cellular telephone network and its ability to disconnect a customer from that service. The marketing of ringtones and the transmission of individual unique copies of ringtones to a customer's cellular telephone certainly implicate rights protected by the Copyright Act, but they are not sufficiently connected to the public performance of the downloaded ringtone to implicate the right protected by § 106(4).[24]
ASCAP relies heavily on the recent decision in Arista Records LLC v. Usenet.com, Inc.,
ASCAP's reliance on this case fails. For starters, the defendant's volitional conduct in Usenet.com rendered them liable for infringement of the distribution rights protected by § 106(3). Those rights are not at issue here; it is undisputed that Verizon pays mechanical license fees to ASCAP's members. Usenet.com simply does not elucidate the degree of volitional conduct that would render a transmitter of music files liable for a public performance of musical works. While it is undisputed that "Verizon markets ringtones as a way of expressing one's tastes and personality to the outside world," that fact falls far short of showing Verizon's participation in the customer's playing of ringtones in public. To find Verizon directly liable, there must be conduct by Verizon that is "sufficiently close and causal" to its customer's decision to activate the ringtone in a public setting. See Cartoon Networks,
ASCAP argues that the fact that Verizon takes no particular step to cause a ringtone to be played in public should not be determinative of its liability since many infringers like Napster, Aimster and Grokster rely on automated systems that require no human intervention by the party enjoying the revenue. This argument skips over the careful analysis of the statutory framework and the individual factual settings in each case that is necessary to determine liability. The three cases on which ASCAP relies all imposed secondary liability on the defendants, not direct liability. Grokster,
Finally, ASCAP argues that Verizon exerts sufficient "control" over the playing of the musical works in public because it has the ability to avoid the infringement by simply not including ASCAP ringtones in its library or paying ASCAP for a performance license. This argument begs the question. ASCAP has not shown any infringement of its members' rights by the playing of ringtones in public from Verizon's customers' telephones. The customers are not liable for copyright infringement, and neither is Verizon.
CONCLUSION
Verizon's May 22, 2009 motion for summary judgment is granted.
SO ORDERED.
NOTES
Notes
[1] Pursuant to a consent decree stemming from antitrust litigation filed by the United States Department of Justice against ASCAP in 1941, this Court sits as a rate court to resolve disputes over ASCAP's licensing fees for the public performance of its members' musical works.
The Second Amended Final Judgment entered in the United States' civil antitrust action against ASCAP ("AFJ2") provides in Section IX that anyone desiring a license for the public performance of any ASCAP musical composition may apply to ASCAP therefor and, upon such application, may perform the music for fees to be determined later. Section IX further provides that if the parties cannot agree on the fee for such license, either party may apply to this Court to set reasonable interim and final fees.
United States v. Am. Soc'y of Composers, Authors and Publishers,
[2] ASCAP is prohibited from "acquiring exclusive music performing rights" from its members and from "interfering with the right of any member to issue to any user a non-exclusive license for music performing rights." Buffalo Broad. Co., Inc. v. Am. Soc'y of Composers, Authors and Publishers,
[3] Pursuant to a ruling by Copyright Royalty Judges, Verizon pays songwriters and music publishers a royalty of 24 cents per each download of a ringtone for the reproduction and distribution of their musical works. This is more than two times the royalty rate it pays them for permanent downloads of entire songs through programs such as iTunes. That royalty rate is 9.1 cents per each download of a song. In the Matter of Mech. & Digital Phonorecord Delivery Rate Adjustment Proceeding, No. RF 2006-3, 74 Fed.Reg. 4510, 4510 & 4526 (C.R.B. Jan. 26, 2009); 37 C.F.R. § 385.3(b).
[4] Verizon's 2009 application to ASCAP for a non-exclusive blanket license for the public performance of musical works sought a license for ringback tones and content streamed over its "VCAST" service. The application did not identify ringtones.
[5] Sound recordings are "works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work, regardless of the nature of the material objects, such as disks, tapes, or other phonorecords, in which they are embodied." 17 U.S.C. § 101.
[6] Sound recordings are "derivative" works of the preexisting musical composition, and to obtain a copyright in a sound recording one must secure a license from the copyright owner of the underlying work. The mechanical rights for sound recordings under § 106(1) and (3) are subject to compulsory licensing under the regime established in 17 U.S.C. § 115. See Palladium,
[7] The sound recording copyright did not include a right of performance until recently. See Arista Records v. Launch Media, Inc.,
[8] In Buffalo Broadcasting, the Court of Appeals observed in passing, while considering whether local television stations needed to obtain a public performance license for musical works contained in syndicated programs, that a producer of a syndicated program did not need to acquire such a license to either make or sell the program to the television station. Buffalo Broad.,
[9] ASCAP refers to several decisions for the proposition that Verizon is liable for each step in the transmission process leading to a public performance since it has "control over the entirety of the process from server to listening ears." As discussed infra, Verizon does not control when or where the ringtone will be played and whether it will be heard "publicly." Its lack of control at the point of performance stands in sharp contrast to several of the cases on which ASCAP relies for this proposition; in every instance but one, these courts also found or assumed that a public performance license was necessary at the point at which the performance was displayed to the public. See National Football League v. Primetime 24 Joint Venture,
[10] It bears noting, however, that Verizon's ringtone is downloaded to a customer's telephone while the programming at issue in Cartoon Network resided in Cablevision's hard drives.
[11] Cartoon Network distinguished cases in which the same copy of a copyrighted work was watched by a succession of individuals. Cartoon Network,
[12] Cartoon Network,
[13] Streaming, in contrast to downloading, allows the real-time playing of a work through a constant link maintained between the provider's server and the client. A replay is not possible without streaming the work again. Download Decision,
[14] Where a transmission is of a digital file rather than a performance that can be contemporaneously observed or heard, and where that transmission is but a link in a chain to a downstream public performance, it may be that the transmission is not an act of infringement for which the transmitter is directly liable under § 106(4), but rather an act that may subject the transmitter to contributory liability under § 106(4) for the infringement created by any ultimate public performance.
[15] Verizon also contends that any public performance of a ringtone constitutes fair use under the Copyright Act, but does not rely on that argument in seeking summary judgment.
[16] ASCAP's solitary example of customers playing their ringtones for what it argues was commercial advantage was the audience's use of their cellular telephones as part of the 2006 Chicago Sinfonietta "Concerto for Orchestra and Cell Phones." Even if ASCAP were able to allege that Verizon customers were in the audience of that performance, ASCAP does not allege that the Verizon customers themselves had any "purpose of commercial advantage," received any fees, or charged admission. Rather, it appears the Chicago Sinfonietta is the entity that had the commercial purpose, received any payment or fees, and charged admission for the performance of music. And, as Verizon points out, the orchestra was licensed by ASCAP at the time of its performance.
[17] It is therefore unnecessary to discuss whether Verizon meets the criteria for any theory of secondary liability.
[18] ASCAP has not resorted to Rule 56(f), Fed. R.Civ.P., procedures in order to argue that this issue or any other is not ripe for decision.
[19] ASCAP and its amici Broadcast Music, Inc. and Society of European Stage Authors & Composers, Inc. argue that Verizon may not stand in the shoes of its customers when determining whether the § 110(4) exception applies to performances of ringtones. Verizon does no such thing. Verizon argues only that its customers' performances are exempt under § 110(4), and Verizon therefore cannot be held secondarily liable for these non-infringing public performances.
[20] A transmission requires the delivery of images or sounds "beyond the place from which they are sent." 17 U.S.C. § 101 (definition of "transmit").
[21] The parties debate whether any activity by Verizon could be said to "otherwise communicate" a public performance of a musical work under the Transmission Clause. 17 U.S.C. § 101 (definition of "publicly"). ASCAP does not identify any principles that would limit the scope of its broad construction of that phrase. In any event, Verizon's sending of a signal to alert a customer's telephone to an incoming call is a signal sent to an individual, not to the public, and could not constitute "otherwise communicat[ing] a performance" to the public. Because ASCAP has failed to raise a question of fact, however, that Verizon engages in conduct that constitutes a sufficient nexus to the public playing of a ringtone it is unnecessary to grapple further with ASCAP's creative reading of § 101's definition of the term "publicly."
[22] ASCAP's arguments focus on the playing of ringtones downloaded from Verizon as opposed to those purchased by Verizon cellular telephone subscribers over the internet. The rulings herein would necessarily govern the latter category of ringtones as well.
[23] This Opinion assumes without deciding that a customer's playing of a ringtone "outside of a normal circle of a family and its social acquaintances" is a performance to the public. 17 U.S.C. § 101.
[24] To the extent that ASCAP argues that Verizon is directly liable because it is jointly and severally liable along with its customers for any public performance that occurs when a ringtone plays, that argument is rejected. Joint and several liability is not an independent basis for liability, but a means of allocating responsibility for an award of damages where multiple actors have already been found liable. See, e.g., 17 U.S.C. § 504(c)(1).