In a definitive victory, a judge ruled that ring tones do not count as a “public performance” and therefore necessitate a license via performance rights middleman such as ASCAP or BMI. Good thing, seeing as how that would mean the end of all licensed ring tones, since such a ludicrous idea would be impossible in practice without a blanket license from which only ASCAP would benefit.

There is a facet of the copyright statute regarding performances, however, that says that no performance necessitates licensing so long as no one paid to listen, had to pay to enter the place in which the music is being played, and that the person “playing” it is gaining no money. This is why you can play your portable boom box at the park or beach and not have to have a license, despite it being a “public performance”.

ASCAP certainly knows this, but leave it to middlemen to try and create a ruling in their favor when – logistically – there’s no difference in carrying a radio playing “Like a Prayer” and carrying a cell phone that rings with the same song.

Luckily, US District Judge Denise Cote was on her a-game and saw the erroneous and ultimately redundant nature of ASCAP’s decision. I have little doubt this will arise again, and we’ll just have to hope that folks like the Electronic Frontier Foundation and others stay on the forefront of this battle, lest big media make humming subject to litigation.