liability, even if the ringing of its customers’ phones in public constituted public
performances.^403
- Arista Records v. Myxer
In Arista Records LLC v. Myxer Inc.,^404 the defendant Myxer operated a website that
enabled registered users to upload recorded music to the site and then, through the use of
Myxer’s software, to transcode the music into a format to create and download ringtones. Users
could make ringtones they had created available for download to other users. In addition to
uploading and downloading ringtones, Myxer users could play portions of any of the sound
recordings on Myxer’s site. Users could also select a sound recording on Myxer’s site and share
it on certain third party websites such as Facebook. Finally, users could select a sound recording
on Myxer’s site, often a full-length recording, and “Customize It” (using editing tools provided
by Myxer) by selecting a desired start and stop point for a ringtone. UMG Records, a competitor
in the ringtone market, contended that, by storing copies of UMG’s sound recordings on its
servers, allowing users to download copies of its sound recordings to users’ cell phones, and
allowing users to preview its sound recordings on either the Myxer site or on users’ cell phones,
Myxer was a direct infringer of UMG’s reproduction, distribution and digital public performance
rights.^405
In a footnote, the court noted that Myxer correctly argued that downloading ringtones to
one’s personal cell phone is not a public performance. Agreeing with the reasoning of the In re
Application of Cellco case, the court ruled that the act of downloading and then playing
ringtones so as to alert the individual of an incoming call does not violate the exclusive right of
public performance because it is not a “public” performance.^406
- Warner Bros. v. WTV Systems
In Warner Bros. Entertainment Inc. v. WTV Systems,^407 the defendants offered a DVD
“rental” service called “Zediva” that allowed customers to view streams from DVDs in DVD
players hosted on the defendants’ premises. To operate the service, the defendants purchased
hundreds of DVD players and installed them in cabinets at a data center they leased in Santa
Clara, California. The defendants also purchased copies of the plaintiffs’ copyrighted works on
DVD and placed those DVDs in their DVD players for selection by their customers. Each DVD
remained in its respective DVD player while it was transmitted to the defendants’ customers on
multiple occasions.^408
(^403) Id. at 376-79.
(^404 2011) U.S. Dist. LEXIS 109668 (C.D. Cal. Apr. 1, 2011).
(^405) Id. at 2, 15-18.
(^406) Id. at 37 n.16.
(^407) 824 F. Supp. 2d 1003 (C.D. Cal. 2011).
(^408) Id. at 1006-07.