transmission of a “performance” of the musical works in the ringtone.^399 The court did note that,
“[w]here a transmission is of a digital file rather than a performance that can be
contemporaneously observed or heard, and where that transmission is but a link in a chain to a
downstream public performance, it may be that the transmission is not an act of infringement for
which the transmitter is directly liable under § 106(4), but rather an act that may subject the
transmitter to contributory liability under § 106(4) for the infringement created by any ultimate
public performance.”^400 That could not be the case here, however, because the court concluded
that there was no qualifying public performance under § 106(4) when the customer used the
ringtone upon an incoming call.
Specifically, the court ruled that, when a ringtone plays on a cellular telephone, even
when that occurs in public, the user is exempt from copyright liability under Section 110(4) of
the copyright statute, which exempts any “performance of a nondramatic literary or musical
work otherwise than in a transmission to the public, without any purpose of direct or indirect
commercial advantage and without payment of any fee or other compensation for the
performance to any of its performers, promoters, or organizers, if [] there is no direct or indirect
admission charge.”^401 The court held that on occasions when Verizon customers had activated
their ringtones and the telephones rang in the presence of members of the public at a level where
it could be heard by others, such playing of the musical works embodied in the ringtones
satisfied all of the requirements of the §110(4) exemption: Verizon customers were not playing
the ringtones for any commercial advantage, they did not get paid any fee or compensation for
those performances, and they did not charge admission. Accordingly, there was no non-exempt
public performance by the users of the ringtones to which Verizon could be secondarily liable.^402
The court also rejected ASCAP’s argument that Verizon was directly liable for itself
engaging in a public performance of copyrighted musical works when ringtones played in public
on customers’ cell phones because it controlled the entire series of steps that allowed and
triggered the cellular telephone to perform the musical works in public. The court noted that
Verizon’s only role in the playing of a ringtone was the sending of a signal to alert a customer’s
telephone to an incoming call, and that signal was the same whether the customer had
downloaded a ringtone or not, whether she had set the phone to play a ringtone upon receiving a
call or not, whether she was in a public setting or not, and whether she had the ringtone volume
turned high or low. And it was the caller, not Verizon, who initiated the entire process that led to
the playing of the ringtone. Accordingly, Verizon did not engage in activity constituting direct
(^399) Id. at 371.
(^400) Id. at 374 n.14.
(^401) Id. at 374 (quoting 17 U.S.C. § 110(4)).
(^402) Id. at 375. Nor, in order to avoid secondary liability, was Verizon obligated to show that each and every
customer would be able to meet its burden of proof that its performance of ringtones in public satisfied the §
110(4) exemption. “The law does not impose an insurmountable burden on Verizon to show precisely how
each of its customers has actually used her telephone, but only requires it to demonstrate that customers as a
group do not exhibit any expectation of profit when they permit the telephones to ring in public.” Id. at 376.