Opinion: On ringtones and copyrights

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If there’s been more bluster about anything other than Apple’s $200 iPhone price cut, it’s about the new support in iTunes 7.4 for purchasing ringtones from the iTunes Store. Apple’s implementation of ringtones is significantly more advanced, less expensive, and more flexible than that provided by virtually any other phone maker or cellular carrier. This, of course, is why everyone hates it with the white-hot passion normally reserved for members of an opposing political party.

David Pogue explains all the fun in his New York Times blog: “Pop song ringtones from T-Mobile and Sprint cost $2.50 apiece; from Verizon, $3. You don’t get to customize them, choose the start and end points, adjust the looping, and so on. Incredibly, after 90 days, every Sprint ringtone dies, and you have to pay another $2.50 if you want to keep it. Verizon’s last only a year. Three bucks for a 30-second snippet that lasts a year—when you can buy the entire song online for $1 and own it forever? What am I missing here? How is a 30-second, time-limited excerpt worth three times as much as the full work forever? Does this not enter the heads of the people who are paying $5 billion a year?”

What Pogue is missing is that purchasing a ringtone is often the only way to put a musical ring on your cell phone; many phones and carriers do not allow you to manually upload ringtones to their phones, so you have to purchase the ringtone even if you already “own” a copy of the song on CD or from a digital music store.

Apple’s model, at least on the surface, looks much better. If the tune you like is licensable as a ringtone, it shows up with a new “bell” icon in iTunes 7.4 and in the iTunes Store. Click on the bell icon to open the new iTunes ringtone editor, after you accept the new iTunes Store terms of service (more on that later). You then get a simple waveform editor in the bottom of the main iTunes window, allowing you to select up to 30 seconds of the song with fade in, fade out, and looping of your selected region (with gaps between the loops from 0.5 seconds to 5.0 seconds).

When you like what you hear, click “Buy” and you’ve spent 99 cents on the version you just made. It then synchronizes to your iPhone as a ringtone. You must also own the entire tune from iTunes first, so the complete cost is $1.98—half to buy the song and half to turn it into a ringtone. The ringtone is yours forever, but the new iTunes Store terms of service require that you can only sync an iPhone with a ringtone to one computer, and that attempting to sync it to another computer will erase your ringtones and replace them with any ringtones on the syncing computer.

Note that the terms allow you to put purchased iTunes music and videos that aren’t ringtones on “up to five Apple-authorized devices” at once, and allow you to store purchases from up to five iTunes accounts on a single device. Not so with ringtones. The terms also require that ringtones be used “only … as a musical ‘ringer’ in connection with phone calls,” and prohibit you from burning them to audio CDs or DVDs.

Why is this so horrible, since it seems demonstrably and easily superior to any other ringtone service offered today? Other cell phones are not tied to music players like iTunes—there’s no way to get music onto the phone except by the cell phone’s preferred method. (There are some exceptions, of course, but not as many as there ought to be.) Since the iPhone is also “the best iPod Apple ever made,” according to Steve Jobs, it already has your tunes on it.

People naturally wonder why they have to pay an additional 99 cents to play a snippet of a song they already own. What’s more, iTunes 7.4 only allows creating ringtones from songs purchased from the iTunes Store that have the “bell” icon. You can’t make ringtones from music you purchased on CD or in other formats (perhaps as MP3 files direct from the artist). If a song you own on CD is licensable as a ringtone, you must purchase the song again from the iTunes Store for 99 cents, then pay another additional 99 cents to turn part of it into a ringtone. This seems somewhat unfair.

It is unfair, but not for any of the reasons we’ve seen bandied about.

The copyright problem

Copyright is a legal construct designed to secure the ability of creative individuals to profit from their works. In general, you control what you create. If you’ve written a book, someone else can’t copy and sell it without your permission, or your grant of the right to copy your work. (See how simple that language is?) There are exceptions, though, and that’s where all the fun begins.

Fair use is a legal doctrine that, as Wikipedia nicely puts it, “allows limited use of copyrighted material without requiring permission from the rights holders, such as use for scholarship or review.” In essence, fair use allows you to use portions of a copyrighted work for valid purposes like criticism or parody, especially if you use only a small portion of it, and your use does not reduce the value of the copyrighted work.

The trick to remember here is that “fair use” is a legal doctrine and defense, not a specific part of copyright law. “Fair use” exists in the United States because the First Amendment to the US Constitution mandates that Congress shall pass no law abridging the freedom of speech. Copyright, by its very nature, abridges the freedom of speech—you’re not free to take the Macworld iPhone Superguide and give it to friends or resell it, for example. “Fair use,” however, ensures that you can quote parts of the Macworld iPhone Superguide in reviews or criticism. It does this by serving as a defense against those claims in court.

This means that “fair use” is a flexible principle, interpreted by individual courts on a case-by-case basis. There’s no section of copyright law or the US Code that says what is and is not “fair use.” It’s more like Justice Potter Stewart’s definition of pornography, another exception under the First Amendment: “I know it when I see it.”

The first argument against the ringtone business is that using a section of a song you already own must be “fair use.” Perhaps it is; to our knowledge, this has never been litigated because no one has ever been sued for copyright infringement for playing a ringtone. It’s similar to the established idea that it’s “fair use” to rip the audio from CDs you own to put digital copies on your computer and on your iPod: you bought the music, and you should be able to listen to it how and where you wish.

But it’s important to remember that the record labels fought against that blanket interpretation as well, as well as why they’d want to do so. If you want to listen to a CD in your CD player, or on your computer, or in your car, you’re free to do that. You’re not, however, free to purchase the CD once and listen to it simultaneously in all three places. Under copyright law throughout the history of recorded music, those who want to listen to the same music in multiple places at once must purchase multiple copies of the recording. You can rip the CD and listen to the music in iTunes, but technically, you’re not allowed to listen to it in iTunes while your spouse listens to the original CD in the car. You’re not allowed to make copies for every family member, or for your friends.

Apple’s original licenses for the iPod and the iTunes Store made sense to the record labels because chances are pretty good you won’t be listening to purchased music in iTunes and on the iPod at the same time. The one-way sync between iTunes and iPod helped the record labels feel that people wouldn’t be using iPods as shuttles for “stolen music,” and the licensing for purchased tracks makes clear how many devices are authorized to play each track you’ve purchased. That’s all figured into the pricing of tracks at the iTunes Store and in other parts of Apple’s contracts with the recording labels.

Remember, don’t shoot the messenger here, but: A ringtone is a separate digital phonorecording, as defined by the copyright law. A ringtone is not a small set of instructions that says “play this tune from this point to that point” that refers back to your original purchased music file. It is a duplicate of the audio data from that file, downloaded to you from the iTunes Store, and therefore a separate delivery of a recorded song. It is, quite literally, a copy of part of the song, a new file containing copyrighted audio data that sits in the Ringtones folder in your iTunes music library and on your iPhone.

The iTunes Store terms of service do not and did not allow you to make free copies of purchased music. In the best case scenario, making a copy of a purchased track to use as a ringtone would be an additional use of one of your five “Apple-authorized devices” under the iTunes Store terms of service. Since the current iPhone design requires you to own the original song and a separate ringtone file in each of two places (in your iTunes library and on the iPhone), that would be four of your five allowed uses right there. You could then use the song on one more computer, but maybe not on another iPhone or iPod, without purchasing it again anyway.

Yes, this sucks, but it’s the law. When Apple delivers a new copy of a song to you, it incurs an obligation to the record company, which in turn incurs a royalty obligation to the artist, composer, lyricist, and any others who own the rights to the song. Unless the record companies have negotiated a special deal with the artists, those obligations do not vanish because they’re delivering only your chosen 30 seconds of the song instead of the full performance.

A ringtone is a copy of a protected work, and making that copy is only allowable as the copyright holder licenses it.

The compulsory license

We can already hear people complaining, “But the RIAA got the government to agree that ringtones aren’t protected by copyright so they wouldn’t have to pay the composers! It’s fair use! It’s just a giant scam to make more money! Engadget said so !” Well, yes, Engadget did say so, and it is a giant racket to make more money, but it has nothing to do with the RIAA’s arguments in the case cited.

The compulsory license is another exception to copyright law in the United States, as outlined in 17 USC §115. Enacted by Congress almost a century ago to address problems with (we are not making this up) player piano reels, the compulsory license requires those who hold copyright to a “nondramatic musical work” to license it to anyone who wants to make a recording of that musical work, if and only if “his or her primary purpose in making phonorecords is to distribute them to the public for private use, including by means of a digital phonorecord delivery.”

This is essentially the “cover band” rule—if you want to record someone else’s song, you’re free to do so as long as you pay the royalty rates as outlined by the Copyright Office at the time of the recording. You don’t have the automatic right to perform the musical work in public performance, or to sell recordings for commercial use (such as background music or for use in a film or other public presentation), but you can record a song for sale to ordinary people for their private use. This leads to the strange situation that your garage band can get automatic (though not “free”) permission to record almost any song you want, and still not be able to perform it in public without a separate license.

Congress enacted this license in the early 20th century to protect against a vast music monopoly—in the heyday of Tin Pan Alley, there was a fear that giant music publishers could purchase the rights to almost every song and then prohibit anyone from making player piano rolls of their own performances of them. It was later extended to sound recordings, and in the 1990s, digital recordings such as MP3 and AAC files.

To protect the rights of the composers and lyricists, the compulsory license leaves exclusive control of a song in the hands of its creators until it has been recorded for sale. That is, composers and lyricists (or their agents who hold their copyrights) get to choose who first records their work. Once it’s been recorded and made available for sale anywhere in the United States, though, anyone else is free to cover the song under the compulsory license by paying standard, statutory royalties.

In the Memorandum Opinion from the Registrar of Copyrights as touted by Engadget, the RIAA asked the government to determine that ringtones are deliveries of digital phonorecords as defined by 17 USC §115 and therefore subject to the compulsory license. That is, the RIAA wanted a clear ruling that by distributing ringtones of a popular song performance, they were essentially delivering either a recording or a “cover” of that recording, triggering the statutory royalty rate under the definitions of 17 USC §115. While this would mean that the RIAA would have to pay composers and lyricists the standard cover rate (if no other rate had been negotiated), it also meant that ringtones were simple “covers” that must be licensed on request—the copyright holders would not be allowed to withhold permission or demand higher royalty rates than the statute allowed.

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