iTunes 7.4.1 and iToner

[Kevin Callahan]

On Sep 8, 2007, at 2:39 PM, Michael J Wise wrote:

> On Sep 8, 2007, at 10:25 AM, Kevin Callahan wrote:
>
>> Does anybody know if iTunes 7.4.1 breaks iToner?
>
> Apparently yes, but ... there appears to be a work-around:
>
> 	<http://www.engadget.com/2007/09/08/itunes-7-4-1-ringtones-re- 
> rename-workaround-discovered/>


<http://www.copyright.gov/docs/ringtone-decision.pdf>


Analysis.  We believe that Copyright Owners’ arguments are  
inconsistent with the law and
ignore common uses of music by individuals.  The controlling language  
here is “for private use.”
It is undisputed that the term is directed at individual consumers  
who use music for personal
enjoyment.  However, Copyright Owners seem to suggest that once an  
individual takes the music
out of the home, the statutory provision becomes null and void.131   
This cannot be what Congress
intended.  Here, we note that traditional phonorecords are used in  
public (e.g., in boom boxes in
public parks, in a car stereo while the automobile is driving down  
the street, etc.), but that does
not disqualify them from the statutory license by violating their  
primary purpose of being for
private use.  While it may be true that some mobile phone users  
purchase ringtones to identify
themselves in public, this use most likely would not be considered a  
public use as Congress
intended that term to be understood in the Section 115 context, and  
in any event, there is no basis
to conclude that the primary purpose of the ringtone distributor is  
to distribute the ringtone for
“public”use.  The legislative history accompanying Section 115(a)(1)  
does not contradict this
conclusion.  In fact, it clarifies that “the purpose of the  
compulsory license does not extend to
manufacturers of phonorecords that are intended primarily for  
commercial use, including not only
broadcasters and jukebox operators but also background music  
services.”132  Section 115 does not,
however, impose any limitations on the use of a phonorecord once it  
is purchased by the
consumer.  As such, Section 115(a)(1) is not a bar to the inclusion  
of ringtones under the statutory
license.
>

Analysis.  We find that RIAA’s reading of the statute is a reasonable  
one.  The issue arises
only if a particular ringtone qualifies as a derivative work due to  
the presence of copyrightable
derivative work authorship in the ringtone.  If, as we expect will  
usually be the case, the ringtone
is not a derivative work, there will be no reason to reach this  
issue; the ringtone will be within the
scope of the Section 115 license for the reasons stated above.   
However, if a particular ringtone,
released with the permission of the copyright owner of the underlying  
musical work, does
constitute a derivative work, then once that derivative work has been  
distributed under the
authority of the copyright owner, anyone else may, by complying with  
the formal requirements of
Section 115, obtain a compulsory license to make and distribute  
copies of that derivative work.


  Analysis.  We believe that Section 115's general requirements are  
applicable to all types
of ringtones (monophonic, polyphonic, or mastertone).  This applies  
to mastertones that are
simple excerpts of the underlying musical work, ringtones  
(monophonic, polyphonic, and
mastertones) that are not adjudged to be derivative works, and those  
ringtones that do not change
the basic melody or fundamental character of the work.  For newly  
created ringtones that have not
been distributed to the public, and that fall outside the scope of  
the statute because they are
derivative works or for any other reason outlined above, the Section  
115 provisions do not apply.
A commercial license is required to make and distribute those types  
of ringtones.  There will, of
course, be some instances where the status of a ringtone (monophonic,  
polyphonic, and
mastertones) for Section 115 purposes is unclear.  A judicial  
determination would be required
where such mixed question of fact and law are present.
While we cannot delineate a litmus test that will in every case  
determine specifically
whether a particular ringtone is or is not within the scope of the  
statutory license, the guidance
offered above is sufficient for purposes of this proceeding.  In  
general, a ringtone will fall within
the scope of the compulsory license unless it has so altered the  
musical composition as to
constitute a derivative work.  Simply excerpting a single portion of  
a licensed sound recording of
a musical composition will not constitute the making of a derivative  
work.  It is clear that many,
but not all, ringtones will fall within the scope of the Section 115  
license.  Therefore, it is
appropriate for the Copyright Royalty Judges to determine royalties  
to be payable for the making
and distribution of ringtones under the compulsory license.
October 16, 2006


> Aloha mai Nai`a!
> -- 
> "Please have your Internet License            <http://kapu.net/ 
> ~mjwise/>
>   and Usenet Registration handy..."
>
>
>
> _______________________________________________
> MacOSX-talk mailing list
> MacOSX-talk at omnigroup.com
> http://www.omnigroup.com/mailman/listinfo/macosx-talk


http://www.kevincallahan.org/
http://www.kevincallahan.org/software/accessorizer.html
http://www.xeniamara.com/