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open. In writing for the three-member panel, Justice Karen Sharlow noted: "In the present case, no one except the wireless carrier and the recipient normally would be aware of a particular transmission of a ring tone to a cellphone, and in that sense the transmission is not made 'openly.' "However, it does not necessarily fol- low that paragraph 3(1)(f) does not ap- ply. The transmission of a television pro- gram is a performance in public, even if no one is watching it or everyone who is watching it is doing so in private, be- cause it is made available to a sufficiently large and diverse group of people." She goes on to say that, because ring tones are accessible to all the customers of a wireless carrier, they are indeed 'of- fered' to the public, or a particular portion of the public, thereby fulfilling the requi- site degree of openness. "In my view, the conclusion of the Copyright Board that the transmissions in issue in this case are within the scope of paragraph 3(1)(f) of the Copyright Act is consistent with the language of that provision and its con- text. It also accords with common sense. If a wireless carrier were to transmit a particular ring tone simultaneously to all customers who have requested it, that transmission would be a communica- tion to the public. It would be illogical to reach a different result simply because the transmissions are done one by one, and thus at different times." Sookman, who represented the CWTA, says the issue isn't about paying for the right to use the music; it's about paying twice — once for the reproduc- tion right and once for the communi- cation right. "Normally, when you think of communications to the public, what are you thinking about? You're think- ing about TV, you're thinking about radio, you're thinking about cable — all of these one-to-many mass media types of communication. That's what the section [in the Copyright Act] was originally de- signed to cover," he says. www. C ANADIAN Law ye rmag.com M ARCH 2008 51 ntitled-1 1 2/11/08 9:19:37 AM