A federal judge has dismissed the music industry contention that when a mobile ringtone is heard, copyright infringement starts happening since others can hear the song and regarded as a public performance.

If held true it would mean that all mobile users have been in violation of copyrights if their ringtone is heard by others in public.

The American Society of Composers, Authors and Publishers (ASCAP), goal was to earn more royalties from music consumers, who already pay royalties when they buy ringtones. Copyright uproar from the public might have ensued had ASCAP's claims actually prevailed.

“The ruling is an important victory for consumers, making it clear that playing music in public, when done without any commercial purpose, does not infringe copyright,” said Fred von Lohmann, a copyright attorney with the Electronic Frontier Foundation (EFF).

ASCAP sued both AT&T and Verizon, seeking to generate more revenue for its members but  Judge Denise Cote wrote Wednesday that "ASCAP has not shown any infringement of its members’ rights by the playing of ringtones in the public from Verizon’s customer’s telephones."

The ringtone decision also set aside ASCAP’s arguments that it was entitled to double its royalties, from 24 cents to 48 cents, for the reproduction of a ringtone.

“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,” Cote ruled.

Beyond asking Congress to never decrease royalty rates, ASCAP also claimed that monies should be paid when someone embeds a YouTube video, since they regard embeds as public performances. Additionally, other claims for royalty collection include 30 second previews on iTunes and other music stores.

Mobile carriers already pay 24 cents for every ringtone downloaded from them to a mobile device as part of a "mechanical licensing fee."  The Judge sited subsection 110(4) of Title 17 copyright act indicating to ASCAP that they had no case:

[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. . . .

The Judge also said that it was impossible to determine whether the threshold for “public performance” would be met for any ringtone playback, since it usually requires a "substantial number of persons outside of a normal circle of its social acquaintances is gathered."

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