Are Ringtone Sales Public Performances?

In the past few days, both the LA Times and San Francisco Chronicle published pieces wherein they discuss recent moves by ASCAP and other music publishers to try and gather even more money from ringtone downloads.

Essentially, the argument made by the music publishing agencies is that songwriters are due two payments for ringtones. See, when ringtones are downloaded, then that’s payment #1. The second payment comes into effect because the ringtone is played at an audible volume in public, thus making the song a “public performance” and entitled to payment #2.

Per The Chronicle:

The current dispute stems from a 2007 rate court decision that determined the act of downloading music files from Internet sites could not be considered a public performance. ASCAP claims that some wireless providers, which were previously paying for ring tone licenses for public performances, used that decision to justify canceling those payments.

That’s actually a fairly rational argument. However, in a move that equals the massive fines levied against Jammie Thomas-Rasset by the RIAA, ASCAP has gone from a logical quest for their just dividends to a level of crazy I’m not quite sure of.

From the LA Times:

“As if that wasn’t bold enough, the brief later says, “Whether the device is on or off, the volume is turned down, or the phone is placed on vibrate, AT&T has caused a public performance.” (ASCAP brought a similar action against Verizon Wireless.) I’m no lawyer, but from a policy standpoint, it’s absurd to argue that a public performance occurs when there’s no performance to anyone, anywhere.”

In other words, they’re due the money even if the ringtone never audibly plays. Why would ASCAP or BMI try for money in such a ridiculous fashion?

Well, it appears that ringtone sales are heading downward (Yes, I’m aware that it’s from Australia—I wanted a graph). The ringtone sales decline is blamed on the ability to convert pretty much any song you own into a ringtone without too much trouble, either courtesy of a 99 cent conversion in iTunes or a bit of work with some iTunes settings. Why drop a couple bucks for the latest T-Pain bit of Autotune when you can rock the intro to Pink Floyd’s “Lucifer Sam”?

What do you think? As a songwriter, do you feel you’re entitled to the public performance fee? Is this double-dipping? Do you cell-phone owners care one way or another?