iTunes 7.4.1 and iToner

[Kevin Callahan]

more on ringtones copyright decision:
<http://williampatry.blogspot.com/2006/10/ringtone-ruling.html>



On Sep 8, 2007, at 3:16 PM, Kevin Callahan wrote:

>
> 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..."
>>
>>
>>
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>
>
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