The Ringtone racket and the reasonable person

Ringtones, ringtones, ringtones. Since Steve Jobs announced the ringtones for the iPhone some days ago lots of people have been talking about ringtones and how immoral the iTunes approach to ringtones is. And it is ridiculous. However it is not illegal, but then again neither is going around iTunes using the various hacks that are out there.

What you are seeing are the record industry desperately trying to find a new revenue model. Who knows, they might even see this as a way of reaching a younger audience that perhaps does not even consider ever paying for music now a days. I can see that selling ringtones to this teenage market is probably not a bad move from their point of view.

However a slightly more devious thing that I’m pretty sure their legal departments are doing is to create some kind of legal precedent that might eventually lead to ringtones not being fair use of your own music.

How can this be done you might ask? Well law in the the English speaking world is not just the tomes of statutes that congress or parliament make up after receiving sufficient campaign contributions by someone.

The basics of law at least in common law countries is the Reasonable Person. The idea is what would a normal reasonable person on the street (in UK law tradition people talk about the The man on the clapham omnibus) think.

Legislators (Congress, Parliament etc.) codify laws officially to standardize this, but more often probably to justify their own existence. In common law Judges are meant to uncover and document the unwritten law as thought by the Reasonable Person through their rulings.

Now what would a reasonable person think about ringtones? People are justifiably upset that they have to pay 99c on top of what they have already paid for the song. Thus if this went to a court a judge should in theory at least rule based on a combination of existing copyright law and the expectations of a reasonable person as this is (the recording companies say) new territory.

The recording industry lawyers are contrary to prior evidence probably not stupid, however they are desperate. What they are trying to do in separating normal music sales from ringtones is two fold. They are trying to first of all change the perception of the reasonable person, secondly they are trying to create the illusion of a whole new industry in the need of protection, so they can eventually go to their buddies in congress (and yes both parties are equally guilty here) and legislate around this annoying reasonable person.