Define ‘Performance’: BMI Targets T-Mobile on Ringback Claim

US courts recently ruled that ringtones are not public performances, but what about ringback tones?

That is the basis of a recent complaint by performance rights group BMI, or Broadcast Music Inc., which is firing its legal guns at T-Mobile USA.  “Despite extensive BMI efforts spanning several years, T-Mobile has not signed a license agreement,” BMI recently told the Register.  The complaint was officially filed December 21st in the US District Court for the Central District of California, Los Angeles.

BMI pointed to agreements with other US-based carriers, and continued resistance by T-Mobile.  But the legal challenge represents a risk for BMI, simply because T-Mobile has valid arguments for resisting payment.  A principal reason is that ringback tones are played to a very private audience of one caller, while ringtones can generally be heard by larger numbers of surrounding people.

The ringtone decision could influence the outcome.  “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,” US District Court judge Denise Cote opined in a mid-October decision against ASCAP.  That ruling also carried over to a similar complaint against AT&T.