Suit Filed Over Use of Music to Customize Cell Phone Rings

EMI Music Publishing, one of the world’s biggest music publishing houses, has filed a copyright suit against a Santa Monica “dot-com” that helps people change the simple ring of their cell phones into beeping melodies of popular tunes.

The target of the suit, YourMobile.com, has become a cult hit among cell phone users eager to customize their phones in order to make their rings easier to differentiate in crowds. The site, operated by Global Music One, offers nearly 1,000 selections, from rap tunes to TV theme songs to the national anthem.

The service is a far cry from Napster, the song-swapping Web site under legal fire from the record business for making trading actual songs over the Internet almost effortless.

But EMI has taken legal aim at YourMobile.com anyway, filing a suit Monday in U.S. District Court in New York that accuses Global Music One of infringing at least 300 EMI tracks, including John Lennon’s “Imagine,” the Rolling Stones’ “Start Me Up” and Nirvana’s “Smells Like Teen Spirit.”

The publishing giant, which is seeking up to $45 million in damages, declined to comment Friday.

EMI’s suit alleges that Global Music and its chairman, former Capitol Records Vice President Ralph Simon, are “copyright pirates. They have engaged in a deliberate, fraudulent and deceptive scheme.” The publishing giant also accused Simon of “feigning to be taking steps to end their piracy while continuing to infringe upon EMI’s rights.”

Simon and Global Music executives denied the allegations. Simon said that although the site had posted “some” EMI copyrighted material in the past, it pulled down the files weeks ago.

Not so, according to EMI’s suit, which claims that at least 130 EMI songs were available via YourMobile.com as of Aug. 7.

Music industry and legal analysts said that EMI is probably in the right, and that the suit underscores the growing sensitivity record companies have to any Internet-related infringement of their content.

Still, some found a certain amount of humor in the situation. One analyst, who asked not to be identified, joked that the music industry might next go after people who sing in their showers.

“The Napster case, as well as the MP3.com case, has focused more public attention on the protection of copyright material,” said Leonard Rubin, an intellectual property attorney with Gordon & Glickson in Chicago. Moments later, Rubin unwittingly exemplified the cell phone phenomenon when, still online with a reporter, his phone rang with a short digital snippet from a Bach piece.

He paused, answered the phone and asked, “Listen, can I call you back?”

YourMobile.com, a free service started four months ago, said users have already downloaded more than 13 million songs from the site and loaded them into more than 2 million portable phones.

Most wireless-phone manufacturers now incorporate five to 20 various types of tones and tunes into each model, said Ken Hyers, a wireless phone analyst with research firm Cahners In-Stat. Given that at least one-third of all Americans have a cell phone, finding a way to customize the device is getting increasingly important.

“You see it in offices, in conferences, everywhere,” Hyers said. “I see it on my train every day. A phone rings and everyone reaches for their pocket.”

Simon said his company took a cue from Japanese and European consumers who, to get around this problem, use everything from customized rings to jewelry that glows when a call comes in. YourMobile.com only works for consumers with Nokia phones, one of several brands that let people store customized rings. To download one of the 8- to 12-second snippets available at YourMobile.com, users select a tune and punch in their cell phone number. Moments later, the phone will ring, and the tune will be stored automatically.

Simon said that he was shocked by the suit, and that the two companies had been in talks to sign a licensing agreement. “We want to work with the publishers, not against them,” said Simon, who claimed that privately held Global Music has signed licensing agreements with several major music publishers and a majority of smaller ones. He declined to name them.

Although many technology and legal experts were shocked to hear about the lawsuit, they noted that the controversy over the music-swapping firm Napster has everyone in the entertainment community sensitive about copyright issues.

“Legally, the publishers are absolutely in the right on this,” said Anthony Berman, a San Francisco-based entertainment attorney who specializes in new-media issues. “But whether filing a lawsuit is the right thing to do over this issue, that’s a completely different question.”