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United States v. Am. Soc'y of Composers (In re Cellco P'ship)

United States District Court for the Southern District of New York

October 14, 2009, Decided; October 14, 2009, Filed

09 Civ. 7074 (DLC)(MHD); 41 Civ. 1395 (DLC)

Opinion

 [*366]  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  [**3] 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.

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663 F. Supp. 2d 363 *; 2009 U.S. Dist. LEXIS 95630 **; 92 U.S.P.Q.2D (BNA) 1811; Copy. L. Rep. (CCH) P29,830

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.

Subsequent History: Summary judgment granted by AT&T Mobility LLC v. ASCAP, 2009 U.S. Dist. LEXIS 123018 (S.D.N.Y., Oct. 14, 2009)

Prior History: United States v. Am. Soc'y of Composers, 2009 U.S. Dist. LEXIS 83045 (S.D.N.Y., Sept. 11, 2009)

CORE TERMS

ringtone, transmission, customers, musical, infringement, downloaded, playing, telephone, license, cellular telephone, rights, Network, exemption, sound recording, publicly, Copyright Act, incoming call, television, argues, musical composition, programs, digital, signal, rings, secondarily liable, user, summary judgment, audience, display, commercial advantage

Copyright Law, Scope of Copyright Protection, Ownership Interests, General Overview, Assignments & Transfers, Licenses, Nonexclusive Licenses, Protected Subject Matter, Musical Works, Civil Procedure, Judgments, Summary Judgment, Evidentiary Considerations, Burdens of Proof, Movant Persuasion & Proof, Nonmovant Persuasion & Proof, Ownership Rights, Statutory Copyright & Fixation, Sound Recordings After 1972, Civil Infringement Actions, Elements, Copyright Infringement Actions, Digital Performances, Business & Corporate Compliance, Adaptations, Infringement, Secondary Liability, Contributory Infringement Actions, Digital Phonorecord Deliveries, Torts, Procedural Matters, Multiple Defendants, Joint & Several Liability