In an effort to squeeze additional royalty payments from the Carriers, ASCAP has invited this Court to endorse the remarkable proposition that millions of American consumers break the law every time their mobile phones ring in public. Having branded every public ring of a musical ringtone an "unlicensed ringtone performance," ASCAP then argues that the Carriers must either pay royalties or be held liable for these alleged consumer infringements.
Accepting ASCAP's arguments would jeopardize the interests of consumers in three distinct ways. Most directly, increased royalty obligations on the Carriers will mean increased prices for consumers who purchase musical ringtones, an outcome that contradicts Section 110(4) of the Copyright Act,' which makes it clear that entirely noncommercial public performances are noninfringing. Consumers ought not be indirectly taxed for precisely the activities that Congress left outside the reach of the public performance right.