I’m not trying to defend the phone companies (they’ve got enough wrong with them to warrant a small novel), but let’s stop here for a second and think.  It’s downright impossible for the phone company to keep track of what ringtone your phone emits, let alone that there’s no reason for them to want to collect that data or care that one person is alerted to calls by Garth Brooks while another listens to Pink Martini or a third plays back the bridge from a Creative Commons-licensed song they found on Jamendo.  Obviously, we have licensing issues to take into account, because there’s certainly no way AT&T is liable for a song in the public domain.

Then there’s also the difficulty of determining whether whatever song they’ve identified is even being played publicly.  For example, I have an ‘instrumental’ chop of The Limousines’ “New Year’s Resolution” currently set as the ringtone on my Treo.  Let’s say, for the sake of argument, that AT&T knows this (perhaps because their friends at the NSA have nothing better to do and tipped them off).  Now, how do they determine which of the following scenarios is currently in effect?

1. My phone is in ring mode.  The phone will proudly play The Limos to anyone and everyone standing near me every time my mother calls.
2. My phone is in vibrate mode.  The phone will play absolutely nothing, even though it wants to play something, but instead will silently bounce around if placed on a table while being called by Don.
3. I have a pair of headphones plugged in.  Regardless of the ring/vibrate setting, my phone will pipe “New Year’s Resolution” into my ears while the phone waits for me to pick up a call from Google Voice.

By my understanding and thought, only that first scenario would be even remotely a public performance and only in such a case would AT&T have to pay for the playback of my (awesome) ringtone.  And, admittedly, it’s hard to call any ringtone a public performance when (usually) the clip being played is less than thirty seconds in length because the call is picked up or sent to voicemail.  Get a bunch of people in a large crowd, each with a different 30-second chunk of a song, and call them in the correct order, and maybe you’re onto some artsy project that needs licensing, but, for the typical cell phone user, I think that’s just dumb.  And let’s not even get into how many people need to be within x feet of the phone in order for it to be considered a public performance or anything like that.

Naturally, if your carrier had to pay for your pleasure, they’re going to want their profit margins exactly as they were (if not a little more padded), and the call is obviously your fault, so there’s nothing like passing on the cost to their customers (just like they do for incoming SMS messages, for example).

If this gets even a little support outside of the usual groups, I can’t see things going well for consumers.  And if you we do start paying for our ringtones…by all means, make full use of your library.