Know Your Rights: Is it illegal to make my own ringtones?
By Nilay Patel 
posted September 7th 2007 12:17PM
posted September 7th 2007 12:17PM
Know Your Rights is Engadget's new technology law series, written by our own totally punk copyright attorney Nilay Patel. In it we'll try to answer some fundamental tech-law questions to help you stay out of trouble in this brave new world. Disclaimer: Although this post was written by an attorney, it is not meant as legal advice or analysis and should not be taken as such.
We hate to do another Apple-related KYR so soon, but this week's announcement of Apple's pay-and-pay-again iPhone / iTunes ringtone maker (followed up by statements made by Apple VP Phil Schiller) has had a lot of people asking us the following question:
So, is it illegal to make my own ringtones?
No!
Come on.
No, really!
What's the catch?
Nothing!
You wouldn't be doing this if there wasn't a catch.
Oh, alright. But you're not going to like it.
I knew it.
It's really not so bad -- it's just, you know. You're going to hate it.
Spit.
Well, you're on the same side as the RIAA on this one. Hurts, doesn't it?
Impossible! How can that be?
Well, the RIAA wanted to be able to distribute ringtones of its artists without having to pay them big money to do so (surprised?), and it won a decision last year before the Copyright Office saying that ringtones weren't "derivative works," meaning they didn't infringe on the copyright of the songwriter. It's a little more complicated than that, but essentially, if the RIAA hadn't won, ringtones would cost even more, since no one would be able to make them without a license from the songwriter.
But I just want to make ringtones from the music I already legally own.
As long as you're talking about music you've ripped from a CD, go ahead -- no one's trying to stop you. Since making a ringtone doesn't count as a derivative work, you're not infringing any copyrights. Just don't sell or distribute anything, and you should be fine. Funny how this piece of advice keeps coming up, eh?
So why won't Apple let me make ringtones inside iTunes with tracks I've ripped from CDs?
Judging from the fact that the iTMS EULA prohibits the use of downloaded files as ringtones, we'd say it's more than likely because Apple's contracts with the various labels represented in the iTMS specifically forbid it. We haven't seen them, but we'd bet that ringtones -- and the licenses for using songs as ringtones -- have their own lengthy section in Apple's contracts, and that Apple isn't allowed to sell files for use as ringtones without coughing up more dough. Steve has said as much, after all. Otherwise the selection would include more than just the 500,000 songs you can get right now.
We're still not exactly happy with Apple's decision to lock out the consumer like this. For example, why can't we use our own GarageBand compositions as ringtones? We obviously own the rights to music we create. But we can certainly see why the labels would insist on pricing ringtone rights separately, since it's such big business.
So basically it's legal to make ringtones for my own personal use, but only because of the RIAA -- and I'm not allowed to use iTMS-purchased music, and I still have to jailbreak my iPhone or use something like iToner.
Yep.
Damn, why do even the good answers suck?
Hey, it could be worse -- Apple could have dropped the price of the 8GB iPhone by $200 just two months after... oh, balls.
We hate to do another Apple-related KYR so soon, but this week's announcement of Apple's pay-and-pay-again iPhone / iTunes ringtone maker (followed up by statements made by Apple VP Phil Schiller) has had a lot of people asking us the following question:So, is it illegal to make my own ringtones?
No!
Come on.
No, really!
What's the catch?
Nothing!
You wouldn't be doing this if there wasn't a catch.
Oh, alright. But you're not going to like it.
I knew it.
It's really not so bad -- it's just, you know. You're going to hate it.
Spit.
Well, you're on the same side as the RIAA on this one. Hurts, doesn't it?
Impossible! How can that be?
Well, the RIAA wanted to be able to distribute ringtones of its artists without having to pay them big money to do so (surprised?), and it won a decision last year before the Copyright Office saying that ringtones weren't "derivative works," meaning they didn't infringe on the copyright of the songwriter. It's a little more complicated than that, but essentially, if the RIAA hadn't won, ringtones would cost even more, since no one would be able to make them without a license from the songwriter.
But I just want to make ringtones from the music I already legally own.
As long as you're talking about music you've ripped from a CD, go ahead -- no one's trying to stop you. Since making a ringtone doesn't count as a derivative work, you're not infringing any copyrights. Just don't sell or distribute anything, and you should be fine. Funny how this piece of advice keeps coming up, eh?
So why won't Apple let me make ringtones inside iTunes with tracks I've ripped from CDs?
Judging from the fact that the iTMS EULA prohibits the use of downloaded files as ringtones, we'd say it's more than likely because Apple's contracts with the various labels represented in the iTMS specifically forbid it. We haven't seen them, but we'd bet that ringtones -- and the licenses for using songs as ringtones -- have their own lengthy section in Apple's contracts, and that Apple isn't allowed to sell files for use as ringtones without coughing up more dough. Steve has said as much, after all. Otherwise the selection would include more than just the 500,000 songs you can get right now.
We're still not exactly happy with Apple's decision to lock out the consumer like this. For example, why can't we use our own GarageBand compositions as ringtones? We obviously own the rights to music we create. But we can certainly see why the labels would insist on pricing ringtone rights separately, since it's such big business.
So basically it's legal to make ringtones for my own personal use, but only because of the RIAA -- and I'm not allowed to use iTMS-purchased music, and I still have to jailbreak my iPhone or use something like iToner.
Yep.
Damn, why do even the good answers suck?
Hey, it could be worse -- Apple could have dropped the price of the 8GB iPhone by $200 just two months after... oh, balls.
i like this new serie, better than those give away rounds..
I dig it too... anytime you can combine a good legal explanation, some snark, and top it all off with "oh balls", i'm happy.
Keep it up Engadget.
P.S. I doubt locking down the ability to turn previously owned songs in to ringtones is any more complicated than this: The record companies did not want to provide consumers with an EASY tool to turn their Limewire downloaded music in to ringtones. Its easy enough to steal music, but making it easy to turn in to ringtones cuts another revenue stream.
P.P.S. What kind of world are the record companies clinging to when they licence their songs to itunes and sell them for a buck, knowing full well consumers can only transfer them to an iPod? Apple just released an iPod that holds FOURTY FREAKING THOUSAND SONGS. At a buck apiece? Apple isn't releasing these things for no reason... somebody wants 160 gigs of music in their pocket. But i doubt anybodys gonna buy the 300 dollar music player with the intention of droping FOURTY FREAKING THOUSAND dollars of music in it.
Subscription, guys. Its the only way you'll stop the stealing. Wrap your head around it, find some new revenue streams, and let this dollar a track thing go. Apple, your customers, and everyone else already has.
I'm liking this new series as well.
Andrew - an iPod can be used to hold more than just music, you know. With disk mode, it's a practical portable hard drive. Since my computer is filled with, uh, files, storing ripped DVDs or some old pictures and movies that I can't part with on the iPod is an answer.
No one in their right mind would put $40,000 worth of music on their iPod. Songwise, 5,000 tops. But when you throw on videos and pictures, the GB's rack up.
Ummm...160 GB isn't 40k good quality tracks. At best, if you're using a variety of decent (not even lossless) encodings, you're looking at 20k, tops. I have just over 21k songs on this computer, and it runs up to 130 GB. Sure, if you're going to through the pathetic tripe that Apple spews out of its store onto your iPod, exclusively, then you might get 40k, but anything you rip yourself should be a much larger file size, and a much higher quality.
Brian and Zennalathas... you are missing my point.
I'm fully aware you can put other stuff on iPods. Apple sells a lot of that too. But lets say you are going to put movies on that thing... High School Musical, for example. $10 bucks, just over a gig. To fill your hard drive going this route, you are looking at $1600.
If anything you guys MADE my point. I wasn't arguing that its redic that iPods can hold so much, i like that. I was arguing that the record companies & iTunes model of a buck a song (or $10 per movie) is useless. Apple knows this. They know they haven't sold enough songs to fill all of those iPods. And they know they aren't selling high quality enough songs to fill them up more quickly than the advertised numbers.
They know full well we are all pirating the crap out of the very record companies they work with. They don't care cause they don't make a thing on those songs or movies. They make money on iPods though... So they have no real incentive to break the iTunes and iPod system for one that makes more sense, like a subscription model.
The people on this blog know you can throw your homework, some movies, some great high quality lossless music and more on there. Most of us don't want to, because we have thumbdrives on our keychains and we understand that the highest quality music in the world isn't gonna sound great coming out of a quarter inch ipod jack going in to earbuds.
And the rest of the world? They know the ipod is the best player, and they know how to fire up LimeWire to fill it up.
Like i said, you both basically made my point while trying to argue it. Nobody in their right mind would put 40k in to their music. So why is music still a buck a track when we can carry that much in our pockets?
"They know the ipod is the best player" You're kidding, right?
Andrew, subscriptions may work for some people, but they will NEVER replace actually buying the songs - via download or the CD. Why should I pay for a subscription to listen to songs I don't like when I can just buy the songs I DO like for a lot less $$?
Maybe you'll listen to whatever garbage gets released day to day, but I have better things to do with my ears - and my money.
Nilay, a quick question -- does the playing of ringtones in public constitute a public performance under the Copyright Act?
That's a good question, and obviously one for the courts to ultimately answer, but I'd say no, and the Copyright Office agrees -- in the same decision referenced above, the CO said that ringtones were basically for "private use," even if they were used to identify the user in public.
Used to identify the user? I don't understand.. when a CD is playing on my stereo, and the phone rings, who exactly is being identified by this coincidence?
Thanks, Nilay, very helpful. That clears up the biggest issue that was nagging me. But I have one additional (admittedly even more academic) issue -- what about moral rights for non-US jurisdications? That is, artists who allege that the particular portion of a song used as a ringtone, or the fact that it is used as a ringtone in the first place, is somehow a misuse of that artist's work...
It identifies the user in the sense that ringtones are often used as a unique, personal expression, and custom ringtoms are certainly so. That is not to say that anyone could hear a ringtone and immediately identify it as belonging to a specific person based solely on the ringtone itself. Rather, it points to the use of a ringtone as a "personal signature", such as the idea behind someone choosing a particular ringtone that reflects their personal tastes. This seems to be the basis for the question of whether or not such a ringtone constitute a public performance: if I use a ringtone as a personal expression or calling card, then theoretically, I could be performing a part of my attitude as reflected in that ringtone.
Clear as mud?
So, since I have "The Green Hornet" as my ringtone on my Motorola Q(rap), and I actually am the Green Hornet when not using my secret identity of Portwineboy, am I infringing?
I see. Well, I guess I'll just have to see what the law says on this. I need some data. Specifically, how many times does the law permit me to play a song I've bought on my stereo before it becomes my "personal signature". And, when I'm listening to a song within earshot of others, like on the beach or something, what is the diameter of my royalty-free zone and how many folks are allowed within its perimeter?
I'll just keep all this data tabulated in my wallet so I can reference it each time I'd like to play a song in public. Then I'll know exactly when I am required by law to switch to a new song.
I agree
If one wanted to use a piece of original work created in garage band couldn't he just save it out to AAC and use the .m4r work-around ? ?
Sure, until iTunes 7.4.1 comes out later today and breaks that hack. Having to depend on unreliable hacks that can disappear at any time isn't really a long-term solution.
Just dont DL the new itunes. Then wait till a new hack is made for the new version then DL it. Its what sensible people do :)
LOL, I like this new writer/attorney.
Much better than some of the trash that's been writing lately.
The problem here is defining a "ring tone." When Ring Tones were just midi files that weren't actually playing the recording, than yes, I can see how they would charge money for that. But with an iPhone which is integrated into an MP3 player, it makes no sense (other than Apple earning even more money). It should be as simple as "IF X, then PLAY Song." In one case X is "hit the play button." But X could also be "on incoming call from Contact-Name." So essentially, playing an iTunes song is "If the play button is pushed, Play the song." Similarly, a ring tone on an mp3 player SHOULD simply be "If incoming call, play the song."
I agree totally, but it's not Apple e who is making the money here, is the record labels. those are the ones that make almost ll tho money in stores, and particularly the iTMS, Jobs just cares about selling ipods and iPhones, the media store is a way for making those devices more appealing, he probably would be happier letting anyone make their rigntones off their music, since that would increase consumer satisfaction (which translates in loyal consumers and better word-of-mouth, both things that apple relies on a lot)
"Hey, it could be worse -- Apple could have dropped the price of the 8GB iPhone by $200 just two months after... oh, balls"
oh snap!
I love this Know your Rights series
The title always makes me think of this http://www.youtube.com/watch?v=SjxY9rZwNGU
So if it's illegal the great majority of iPhone owners download music illegally anyways so this won't even be in our conscious mind.
I also like this series.
Ah, so things are the way they are because the RIAA screwed the artists, and then under the terms of their agreements with Apple, screwed the consumer. Ok, everything is normal.
And yet, strangely, people keep giving the RIAA and Apple money. It's almost as if the customer knows they're getting screwed but keeps paying anyway.
... oh wait
Yeah, that's Stockholm Syndrome ;)
http://en.wikipedia.org/wiki/Stockholm_syndrome
Yet another reason to stick with a unlocked MP3 player and rip your own tunes for your musical enjoyment. Does anybody really think the record companies will ever go to an all digital format in the next 50 years?
Actually, you can use any AAC file as a ringtone if you change the extension from "m4a" to "m4r". Just add the file back into iTunes and it'll show up under the ringtones tab when you select your iPhone on the source list.
Source: http://www.tuaw.com/2007/09/07/create-your-own-itunes-compatible-ringtones/
I am starting to get tired of all of this RIAA, Apple, who ownes the ring tones, what I can do/Sell with my homemade ring tones, know your ring tone rights BS! Enough is Enough!!!
This is the classic case of good cop, bad cop... RIAA says one thing and then Apple comes back around and says another thing! Both corporations are playing the consumer while pointing the finger at the other company stating its their fault why we wont let you do what you want to do.
Sometimes corporations only understand one thing... How much money they DIDN'T make, when people refuse to buy.
BOYCOT!
The record companies won't exist in 50 years.
You are so right. It will just be independent companies run by the actual artist!
They HAVE to. If they don't, they'll miss the boat completely. CD's will clearly no longer exist in 50 years. Music will be all digital, all the time. They have to start now in order to help shape the industry within which they'll be participating over the next 50 years.
"CD's will clearly no longer exist in 50 years. Music will be all digital, all the time."
CDs are digital, you know?
"They have to start now in order to help shape the industry within which they'll be participating over the next 50 years."
They're more interested in shaping their pockets.
This series is great! But here's a question for the lawyer--
Dose this ruling of ringtones include audio snipits from a tv show or movie?
Okay, I have a Sony phone and so i don't need to sacrifice a goat to get a ringtone--it just plays any mp3 I tell it to play. So my friend and I were planning to capture a few quotes from movies and tv shows so that all our friends can have their own funny ringtone.
Would this be legal to do? Is there, perhaps, a certain length they could be where we wouldn't have to pay liscense fees?
Thanks
About that idoit comment...
You know what they say Derbeste... It takes one to know one!
Whoever said that, was also.....an idiot.
btw, Xz...
If you want to prove to people here I'm wrong, it might help if you respond to my comments within the thread that they are written.
/points down one thread
Anywho Derbeste...
Clicking on a wrong link is not being an idiot.
Calling someone an idiot in a form about their opinion... That doesn't make you seem any more intelligent then the person whom you are talking about!
So do yourself a favor and GROW UP!
"Hey, it could be worse -- Apple could have dropped the price of the 8GB iPhone by $200 just two months after... oh, balls."
That's only a bad thing for people who already bought an iPhone, and they'll be receiving a $100 gift certificate. Reducing the cost of the 8GB iPhone to $399 was the single greatest news I've heard this year. Now excuse me while I take that Engadget sarcasm-dagger out from the middle of my Apple flavored back.
Um... It seems that you don't take jokes very well. :(
But this is great news about the ringtones! Thanks, folks!
Ryan Block is that you?
How about downloading all your song for free from Limewire and then using free software to make your own ringtones?
Sounds good to me!!!
You are aware that those shiny disks you've been able to buy your music on for a while aren't played using a needle bouncing around in an analogue groove, aren't you?
Ummm, you do know that CDs are NOT digital, right? Strange as it may sound, they are analog.
OK, I'll bite. How is a series of ones and zeros representing an approximation of an analogue waveform not digital?
What??? CDs are digital???? no way! thats freakin crazy. i thought i was supposed to etch the information into the plastic w/ a knife... that explains everything
CDs most certainly DO hold digital music. ANYTHING interpreted by a computer MUST be digital. Why the fuck do you think we needed modems for so long to connect to the Internet? They changed the analog signal in the phonelines to 1s and 0s...you know.....DIGITAL...so the computer could understand it.
And since I don't know the last time I saw the RIAA distribute anything in Vynal, Atrac, or Cassette.....I'd say they've gone completely digital.
Now when they're going to go to completely digital DISTRIBUTION.......I'd say they'd better do it sooner than later.