Court Rules No Public Performance Fees for Ringtones

Recently, the United States District Court for the Southern District of New York ruled that publishers are not entitled to public performance royalties for mobile phone ringtones.  See In re Cellco Partnership, 2009 WL 3294861 (2009).  For the past few years, publishers have argued that mobile phone carriers should pay copyright performance royalties when ringtones are downloaded and used by mobile phone customers.

Ringtones are digital copies of songs, typically around 30 seconds in duration, that are designed to be played on a mobile phone in order to signal an incoming call in the same manner as would a telephone ring.  Ringtones come from a variety of sources, but most commonly, mobile phone customers download ringtones from their service providers, such as AT&T, Sprint, or Verizon.

The distribution of ringtones via downloads triggers publishers’ copyright rights to reproduce and distribute musical works.  With respect to such rights, mobile phone carriers pay royalties (commonly referred to as “mechanical royalties”).

In addition to mechanical rights, publishers also control the right to publicly perform musical compositions.  The recent New York District Court decision addresses whether ringtones, which are often played “in public” when a phone “rings,” require payment of performance royalties to publishers (and/or other owners of musical works).

The District Court’s decision involves a dispute between Verizon Wireless and ASCAP, a performing rights organization that licenses public performance rights to musical works on behalf of it members (publishers, composers, and songwriters).  Verizon sued ASCAP in the District Court in the court’s capacity as a “rate court” pursuant to the US Department of Justice’s 1941 antitrust consent decree with ASCAP.  The consent decree established the “rate court” as a forum to resolve disputes with ASCAP (and BMI) over public performance fees.

ASCAP argued that Verizon engages in public performances of musical works when (1) it downloads ringtones to customers and (2) when mobile phones play ringtones to signal incoming calls.

Downloading Ringtones

The Copyright Act provides that performing a song “publicly” means either (1) playing a song at a place open to the public or (2) transmitting a song to the public whether the individuals receiving the song hear it played at the same place and time or different places or times.  The parties agreed that the sole act of downloading a ringtone is not the same as playing a song under the first clause of the “publicly” definition.  However, ASCAP argued that the transmission of downloads invoke the “transmitting” clause.

The Court held that because each act of downloading a ringtone only involves the transmission of a unique copy of the song to one customer, the transmission is not made to the public.  The Court also considered whether a download is just the first link in a chain of transmissions ending when the customer uses the ringtone to alert her to an incoming call.  Citing the Court of Appeal’s decision in Cartoon Network v. CSC Holdings, 536 F.3d 121 (2^nd Cir. 2008) , the Court observed that a link of transmissions would only be considered “to the public” under the “transmitting” clause where it is clear that the final link in a transmission is “undisputedly a public performance.”  As discussed below, the Court concluded that playing a ringtone does not qualify as a public performance, and thus concluded that the “transmitting” clause is not applicable.

In addition to rejecting ASCAP’s argument under the “transmitting” clause, the Court also determined that ringtone downloads are also not “performances” because a performance requires “contemporaneous perception.”  Since a ringtone download is a transmission of data rather than a musical broadcast, the download itself is not a perceptible rendition of a song.  In support of this conclusion, the Court referenced its prior decision in United States v. ASCAP, 485 F. Supp. 2d 438 (2007), in which it held that the downloading of music itself is not a public performance.

Playing Ringtones

The Court also rejected ASCAP’s argument that there is a public performance when mobile phones play ringtones to signal incoming calls.  The Court considered two exemptions to the public performance right in the Copyright Act:  (1) performances that occur within “the normal circle of a family and it social acquaintances” and (2) performances without the expectation of “direct or indirect commercial advantage.”

The Court ruled that both of these exceptions apply to the mobile phone customer’s playing of ringtones because even when a phone “rings” in a public setting, the phone user is not playing the ringtone with the expectation of any profit.

And, even if the “ring” on a customer’s phone were not exempt, the Court held that Verizon would not be liable because Verizon does not (1) control when a phone rings or which ringtone is played or (2) profit specifically from act of playing a ringtone.

Conclusion

While the Court’s decision is a defeat for ASCAP and publishers, it is not surprising.  The decision comes on the heels of a 2006 decision by the Register of Copyrights that held that ringtones can qualify for the compulsory mechanical license under the Copyright Act which is only applicable for qualifying “private uses.”  The Register of Copyrights ruled that the primary purpose of ringtones is for private, not public uses.  See Docket No. RF 2006-1, U.S. Copyright Office, Oct. 16, 2006.

Furthermore, ASCAP was not necessarily the most sympathetic party here.  The fees requested by ASCAP could be perceived, in effect, as a “double dip,” since publishers are already paid mechanical royalties for ringtones.  Granted, such mechanical royalties are generally limited in amount by the compulsory license rate.

This is likely not the end of the story.  Recently (and prior to the Court’s ruling), publishers asked Congress to revise the copyright law to clarify that digital downloads implicate the public performing right.  Such a law could effectively reverse the Court’s decision.  And, not only could this affect ringtones and music download, but it also could affect downloads of movies and television shows.  This could be particularly significant given the potential shift of the public’s viewing habits from television (for which significant public performance fees are paid) to on-demand downloads to iPods and laptops (which are not now considered public performances).

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Midwest Mobile Entertainers Seminar - Less Than 2 Weeks Away!

• Andy Ebon, speaking about marketing to the 21st Century Bride and blogging your way to success.
• Stevie Ray, covering the five steps of persuasion to make your sales soar.
• Jim Cerone, will be presenting THE Perfect Host parts one and two.

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American DJ Announces Their Involvement in the MBLVX Show

Mobile Beat Announces today that American DJ has come on to MBLVX again this year.  From Ryan Burger, Publisher - Mobile Beat Magazine “A fantastic large booth showing all their new products debuted at NAMM, the American DJ Customer Appreciation Party on Wednesday night and more - American DJ is ON with MBLVX!”

“The Mobile Beat Show in Vegas has been a part of the American DJ culture for many years. For us it is way more than a chance to show the really cool new products American DJ has introduced, it’s also a great opportunity for me and everyone else at our company to connect with many of the DJs that have helped to make American DJ what it is today. The show is our chance to catch up on what the members of our DJ family have been up to, and learn about what they need so we can continue to turn out the best possible lighting and audio gear. It’s also our chance to thank our DJs by throwing a great party for them. The DJ community is like a family, and American DJ is proud to be a member of that family. For us, the Mobile Beat Show is like anannual family reunion - we wouldn’t miss it for the world.” Scott Davies, general manager of American DJ.

Check out more details at http://www.mobilebeat.com/las-vegas-dj-show/ and check out American DJ at http://www.americandj.com.

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Put Some Snow In The Air At Your X-Mas Parties!

MBT Lighting Announces the New SM1 LI’L SNOW BLOWER MACHINE!

Charleston, SC, October 27, 2009 - MBT Lighting, a leading source of disco, DJ lights, special effects, stage lighting and audio gear for DJs, nightclubs, bands, theaters,  churches and schools, introduces a new snow blower machine, the SM1 LI’L SNOW  BLOWER MACHINE!
THE SM1 LI’L SNOW BLOWER is a full-powered snow machine in a compact  lightweight plastic case, which creates impressive simulated snowflake output and  comes with an on/off remote on a 30 foot cable. The SM1 uses SMFG snow fluid, which  is not included. Great special effect for dance floors, theaters, plays, movies and more!  Retails for $119.00.

For more information, please call 800-845-1922 or visit them online at www.mbtlighting.com

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Touch DJ by Amidio - Mix on Your iPhone

Touch DJ by Amidio Inc is the first and only real MP3 DJ mixing tool available for the iPhone.

Ever wondered why there’s no other decent DJ app? Now you know. Only Touch DJ offers what has been considered technically impossible on this platform - realtime independent precise manipulation of 2 pitched MP3 files at the same time.

This application is not a toy, it’s a completely new way to create stunning DJ mixes whenever you like. You can touch and feel your tracks, move around them, scratch them, EQ them, loop them, pinch them, and mix them without cueing - only by visual control.

All the tracks are frequency-colored (the low-bass parts have different color), to make beatmatching even easier.

Judging by the results, Touch DJ is able to replace hardware worth at least $1000. Moreover, we collaborated with the top dance music provider DanceMusicHub.com and give you 25 coolest, fresh dance tracks, so that you will be able to start jamming away instantly.

Look for it in Itunes any day now!

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Mobile Beat Pre-Show Super Session: Monday February 8, 2010

Mobile Beat Pre-Show Super Session: Monday February 8, 2010

Blogging Your Way To Business Success Parts 1 & 2 with Andy Ebon - Monday afternoon from 1:30 - 4:30pm.

PLEASE NOTE: This session is NOT included in your FULL SHOW PASS. It requires an additional registration fee. Pre-registration fee of $60. Onsite $75.  You must be registered for MBLVX first.

Since the mid-90’s, blogs have become a web-centric world. It has become exceedingly difficult to stay above the crowd of competitors’ web sites. Creating and maintaining a business blog is THE best way to continually communicate and promote your website and business, while improving search engine rankings, without constant dependence on a Webmaster. If your company has an existing web site and would like to discover more about cross-promotion on the web and dramatically improve your search engine ranking, this seminar is for you!

Part One 1:30 to 2:45 PM

• What a blog can do for your business.
• Understanding the integration between a blog and a website.
• Who reads your blog and writing for the reader.
• How to use a blog for cross promoting your business and other people’s businesses.
• Why ‘RSS Feed’ is one of the most important new terms you need to know now.
• The future of web marketing.
• Results: What to expect and when to expect them.
• What you should do before you launch a blog.

Part Two 3:00 to 4:30 PM

• Demonstrating the process of installing blogging software, plug-in software and writing actual posts.
• Demonstrating basic Wordpress blog platform setup.
• Showing theme templates for Wordpress, including their installation and switching between themes.
• Demonstrating installation of plug-in software options and their use.
• Writing a sample post including uploading and resizing of images.
• Demonstrating how to optimize a post for search engines.
• Discover how your business can consolidate its website and blog into a single Wordpress-based site and become making virtually independent of a webmaster.

Extra Bonus: Attendees of the blogging seminar will receive a FREE eBook copy of The Power of the Platform: Speakers on Success which includes Andy Ebon’s chapter, Blogging Your Way To Business Success

Register at https://members.mobilebeat.com for this opportunity to improve your web presence through blogging!

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Altec Lansing Launches Speaker for Rock Band, Guitar Hero and DJ Hero

Roadie-styled system brings 40 watts of power to your game.

NEW YORK, NY - October 20, 2009 - Today, Altec Lansing introduced its new Stage-Gig^TM speaker system at the College Music Journal (CMJ) Music Festival in New York. Stage-Gig is a portable amplified speaker designed specifically for use with Rock Band®, Guitar Hero® and DJ Hero® games on any gaming platform. Delivering big sound and authentic roadie portability, Stage-Gig makes the concert gaming experience feel even more real.

“Stage-Gig is the first speaker system designed from the ground up for use with Rock Band, Guitar Hero and DJ Hero,” explains Don Milks, senior manager of product management at Altec Lansing. “By amplifying the audio, Stage-Gig makes the games feel even more like you are playing in a live concert. Stage-Gig works especially well with multi-instrument games, where the drums and bass guitar are often lost when heard through traditional TV speakers.”

40 watts of power provide thrilling sound in a tour-sized unit. With a 6.5″ high-performance woofer and a specially-engineered horn-loaded silk tweeter, Stage-Gig delivers every note clear and clean. The woofer provides dramatically more bass than most TV speakers.

Roadie tested - with a grab-and-go handle, rugged finish, corner guards and old-school amp knobs - Stage-Gig is easy to move around the house or neighborhood. Music gamers can quickly daisy-chain multiple Stage-Gigs together with the built-in AC outlet and RCA connections to go even bigger with the sound.
The Stage-Gig is compatible with just about any gaming console, including Microsoft® Xbox 360®, Nintendo Wii® and Sony® PlayStation® 2 & 3.

Features
High performance design - 40 Watts of RMS power provide big sound in a tour-sized unit.
Huge bass - 6.5″ high performance woofer pushes thumping bass.
Flawless highs -Specially engineered horn-loaded silk tweeter for wide dispersion.
Linkable - Daisy-chain Stage-Gigs together, plug-and-play style, for multi player Guitar Hero or Rock Band parties
Top-mounted controls - Easy to reach while you are playing.
Roadie styling - Tough design with corner guards means Stage-Gig can survive the road.
Portable - Grab handle and lightweight design are made to move.
Inputs - Jack in and crank up your Microsoft Xbox, Nintendo Wii or Sony PlayStation, no fuss.
Audio Alignment^TM - Drivers, enclosure and electronics are balanced for optimum sound.

Pricing and Availability
The Altec Lansing Stage-Gig (US model #RM3010) will be available in early November 2009 at Amazon.com, Costco and leading consumer electronics retailers, as well as at www.alteclansing.com. MSRP is US$99.95.

Stage-Gig Debut at CMJ Music Festival
Altec Lansing is the presenting sponsor of the PureVolume House at the CMJ (College Music Journal) Music Festival where the Stage-Gig will make its debut. The PureVolume House is a five-day event, October 20 - 24, featuring the official CMJ Artist Lounge and After Parties. The PV House is located in NYC’s Lower East Side at 169 Bowery Avenue, just around the corner from The Bowery Ballroom.

About Altec Lansing
For more than 70 years Altec Lansing has been viewed among audiophiles as the world’s most valuable and innovative audio brand and boasts a unique history of innovation that includes the introduction of first talkie film speakers, the first iPod docking station and the first “Works with iPhone” speaker system. Altec Lansing makes a wide range of audio systems for the home and office; a line of headphones for personal listening; and the popular line of inMotion speaker systems for portable digital players. Altec Lansing, a division of Plantronics, Inc. (NYSE: PLT), is headquartered in Milford, PA.

Connect with the Altec Lansing team on the following social media sites:

http://www.youtube.com/MixDanceContest
http://www.twitter.com/AltecLansing
http://www.facebook.com/AltecLansing
http://www.flickr.com/AltecLansing
http://www.youtube.com/AltecLansingSpeakers

Altec Lansing, Stage-Gig and Audio Alignment are trademarks or registered trademarks of Plantronics, Inc. Rock Band is a registered trademarks of Harmonix Music Systems, Inc. Guitar Hero and DJ Hero are registered trademarks of Activision Publishing, Inc. All other names and trademarks are the property of their respective owners. More information can be found at www.alteclansing.com.

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Denon DJ Teams up with Native Instruments

ITASCA, IL, October 21, 2009 - Denon DJ, a leading manufacturer of premium-grade DJ equipment, announces a partnership with Native Instruments, a leader in software and hardware for digital music production and performance, for a new software interface for Denon DJ’s popular DN-HC4500 USB MIDI/Audio Interface & Controller. All DN-HC4500 units are now shipping with Native Instruments Traktor LE software. Traktor LE is based on Native Instruments’ award-winning Traktor Pro software and offers two deck control, Crate Flick cover art browsing and an integrated two-channel mixer. Auto-sync, looping and a host of other useful, advanced features offer DJs inspiration and ease of operation. Subsequent software upgrade offers from LE to Traktor Duo and Traktor Pro can be found at www.native-instruments.com.

The DN-HC4500 USB MIDI/Audio Interface & Controller is Denon DJ’s first USB MIDI/Audio interface designed exclusively for computer performance by club and mobile DJs. This highly flexible, feature-packed, portable PC- and Mac®-compatible controller combines unmatched hardware performance with internal high-quality audio processing and low latency ASIO support. Notably, it provides DJs with the exclusive flexibility to control Denon’s optional BU4500 dual CD/MP3 player for simultaneous 4-player configuration.

Among the DN-HC4500’s many other advanced features is a Multi Functional Touch Sensitive Jog Disc constructed with an ultra high-resolution pulse and touch sensor to accurately reproduce the most swift or subtle scratching movements made by the human hand. The Jog Disc can also perform other vital functions with Traktor LE, such as FX control. A Vibrant Tube Display with Character Text Support offers two lines of character information, letting DJs know what is playing without having to look up at their monitor. A visual 32-position Marker Point indicator follows hand movements at lightning speeds without drift. Other indicators include Looping, Hot Starts, BPM info, Elapsed Time, and other useful indicators.

Highly responsive soft rubber buttons, switches and knobs, plus 5 easily accessible function keys at the top of each deck and 45-mm pitch sliders add to the DN-HC4500’s ease-of-use and utility.

Other Traktor LE features include full iTunes and iPod compatibility, Auto Beatgridding and Sync Lock, Instant Loop and Set Cue Button, Loop Length Selector, Grid Panel and four effects: Flanger, Delay, Reverb and Filter.

The Denon DJ DN-HC4500 with Native Instruments Traktor LE is now shipping.

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OOVJ - break a beat, not your back.

You have heard about it, soon you will be able to get your hands on it. Eagerly anticipated by some of the most respected UK and international DJ/VJs alike; OOVJ - the ultimate hardware for music professionals is about to  go mainstream.

Launching in early winter 2009, it is the one stop unit for any professional VJ, encompassing all of your equip- ment and more, OOVJ has been designed for you to break a beat, not your back.

Jonpaul Wright, Managing Director, Computer DJ Ltd said:
“Playing a gig for any music professional worth their salt is pure euphoria, carting all of your equipment to the stand isn’t! We wanted a product that not only incorporated razor sharp technology but aesthetically and functionally took the sting out of carrying and using all of those separate pieces of kit.  ”As the successor to the infamous OODJ, which has been a favourite for over five years with the world DJ elite including Paul Oakenfold; the OOVJ offers all of this and a lot more - showcasing audio, karaoke and video through a rugged but sleek anodised aluminium chassis that cradles professional grade audio and video components, the storage of a colossal modern high speed drive, a generous 17″ high resolution touch screen, liquid proof keyboard, built in mouse controller, Wi-Fi and slot loading DVDRW drive.”

Jonpaul added:  ”We’ve already had a phenomenal amount of support for the new OOVJ from industry professionals such John ‘’OO” Fleming and Greg Wilson. To be recognised by individuals of this caliber is a great feat for us and a true recognition of the quality of OOVJ.”

Internationally acclaimed talent Greg Wilson (available at www.electrofunkroots.co.uk) said:
“This looks as slick as they come, I’m really looking forward to upgrading to OOVJ which promises to open a
whole new world of possibilities not just for me, but any digital DJ/VJ.  ”As well as the aesthetics which are laced with sex appeal this is an ideal unit for someone such as myself who is always on the move. I can’t wait!”

OOVJ - instant performance, infinite possibilities.
For further information please click www.oovj.co.uk or call 01482 319700.

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Denon DJ Partners with Promo Only, Inc For Special Offer

DENON DJ PARTNERS WITH PROMO ONLY, INC. FOR SPECIAL OFFER

- Promo Only, the nation’s premier provider of promotional music, offers Denon DJ customers a certificate redeemable for two free CD’s -

ITASCA, IL, October 20, 2009 - Denon DJ, a leading manufacturer of premium-grade DJ equipment, has announced a partnership with Promo Only, Inc., the nation’s premier provider of promotional music. Together with Promo Only, Denon DJ is offering a promotional certificate to customers who purchase new DJ/CD playback products from an authorized U.S. Denon dealer. The certificate can then be redeemed for two free Promo Only CD’s, with no further obligation. The Denon DJ units with the included certificates are now shipping, and the offer expires March 31, 2010.

The offer’s promotional CDs can be user-selected from 18 styles/formats, including mainstream radio, urban radio, country radio, modern rock radio, rhythm radio, dance radio, mainstream club, underground club, alternative club, rhythm club, club beats UK, underground beats UK, urban club, tropical Latin, regional Latin, pop Latin, contemporary Christian and Caribbean. The promotion is intended to offer DJs and other influential tastemakers a sampling of tomorrow’s hits before they hit the mainstream channels.

Commenting on the promotion, Denon DJ Brand Manager Silvio Zeppieri stated, “Promo Only is one of the premier sources for a wide breadth of promotional music for DJs. Now, in addition to offering a great Denon DJ product, we are providing our loyal customers with additional tracks and new sounds to incorporate into their mixes.”

More information can be found at www.denondj.com.

.—–

About D&M Professional
D&M Professional, through its Denon® Professional, Marantz® Professional and Denon DJ brands, manufactures and distributes a leading line of professional audio and video equipment for the broadcast, commercial, corporate, DJ, education, government, audio/visual, education, houses of worship, security and related industries.Visit D&M Professional at www.d-mpro.com or Denon DJ at: www.denondj.com.

About D&M Holdings Inc.
D&M Holdings Inc. is a global operating company providing worldwide management and distribution platforms for premium consumer, automotive, commercial and professional audio and video businesses including Denon®, Marantz®, McIntosh® Laboratory, Boston Acoustics®, Snell Acoustics, Escient®, Calrec Audio, Denon DJ, Allen & Heath, D&M Professional and D&M Premium Sound Solutions. Our technologies improve the quality of any audio and visual experience. All product and brand names with a trademark symbol are trademarks or registered trademarks of D&M Holdings, Inc. or its subsidiaries. For more information visit www.dm-holdings.com.

About Promo Only
Promo Only offers 18 different formats of music on CD and 8 different formats of music video on DVD, including weekly and DFF (digital file format) delivery, each designed to meet the specific needs of music professionals and entertainment venues. Subscribers to Promo Only enjoy the widest variety of the newest releases, access to turnkey audio and video libraries, and a suite of custom audio and video programming services (hospitality and retail establishments only).

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