XM+MP3 Going to Trial

fistfullast33l writes "A federal judge has ruled that Music Companies can take XM Radio to trial over the XM+MP3 device that allows users to record songs off the Satellite Radio Company's network for playback later. The lawsuit, which was filed last year, asserts that XM is violating the Music publishers' sole distribution rights. From the article: 'XM has argued it is protected from infringement lawsuits by the Audio Home Recording Act of 1992, which permits individuals to record music off the radio for private use. The judge said she did not believe the company was protected in this instance by the act.'"

Re:I am not a lawyer, but..

[fishybell]

"The judge said she did not believe the company was protected in this instance by the act."

Do judges normally give their opinions about a case before it has begun? This seems biased.

The statement was given in a hearing about whether or not this case will go to trial. Both sides gave an argument, and the judge decided that the RIAA's argument was compelling enough to move to a full trial. This type of opinion is normal in a ruling, be it a hearing or trial.

This is just a negotiating tactic

[Jack Pallance]

The music industry knows that they don't have a leg to stand on. What they want is a way out of their contract to license music to satellite radio. When the radio companies started paying big money for on-air personalities (Think Howard Stern, Oprah, etc), the music companies wanted a bigger piece of the pie.

They're reasoning is that music is the biggest draw for XM listeners. So if XM can afford to pay Jimmie Johnson a million a year for one radio show, then the music cartel deserves at least 60 times that much (for sixty channels of music). But currently, the muisc mafia is locked into a ten year contract for a total of 60 million dollars.

This was all explained in a letter to XM subscribers a couple of months ago.

According to Wikipedia...

[paladinwannabe2]

The Audio Home Recording Act [wikipedia.org] only applies to analog recordings made off the radio. However, looking at the act itself I don't see that.

From The U.S. Copyright Office [copyright.gov]:

1008. Prohibition on certain infringement actions No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings.

It looks like this is saying that you can't sue the makers of any recording device based no the noncommercial use of an infringing consumer. (Not it doesn't stop them from suing the consumer).

I may be missing something... any ideas?

We should look back to the Copyright Act of 1976

[monkeyboythom]

We have the amendment, The Audio Home Recording Act of 1992, of the original, COPYRIGHT ACT OF 1976, because of concerns over digital audio tape (DAT).

Basically, the amendment says that digital recording devices must abide by a Serial Copy management System Basically an SCMS will allow you to make as many first generation copies of the original source but this copy will not allow copies to be made from it. (No second generation.)

Maybe the judge sees that this XM+MP3 does not have this copy-bit protection and will allow the lawsuit to continue. I didn't see anymore information in the TFA to tell why she ruled. But if XM+MP3 can show that it only allows for first generation copying only, then there should be no case.

http://en.wikipedia.org/wiki/Serial_Copy_Managemen t_System [wikipedia.org].

Re:Scope of Civil Court questions

[Alchemar]

Only if they sue for anything over $20.

Amendment VII

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Re:Protection

[gstoddart]

I could understand that if the copying of the music from the broadcast was illegal, however it is not and is protected under the Home Audio Recording Act.

Well, from that very article, we find this paragraph ...

In each case, the principal distinction between what is and is not covered by the AHRA is determined by whether or not the device is marketed or designed (or in the case of media, commonly used by consumers) to make audio recordings, not the device's capabilities. For consumers this means that copies of copyrighted works made with two technically identical media or devices may or may not be subject to civil penalties, depending on how the device was marketed. A CD-R recorder included as part of a personal computer would not be a digital audio recording device under the Act, since the personal computer was not marketed primarily for making copies of music. The same recorder, sold as a peripheral and marketed for the express purpose of making digital audio recordings, would fall under the Act's definition of a recording device.

Which, if I read it correctly, a "device marketed primarily for making copies of music" (ie, a sattelite receiver with a record feature) might, in fact, be an infringing device because that is it's primary function. It also isn't a device whose primary function is recording of non-music.

As I read this, XM may be in deep doo doo here. The protection you reference isn't a blanket permission, but it has restrictions on it. XM may be running afoul of those restrictions.

Cheers

Re:I am not a lawyer, but..

[cultrhetor]

No. The burden of proof still lies with the music company: the judge's verdict only affirmed their right to their day in court. It basically said, "there is a possibility of fault that a court can decide." The possibility of fault does NOT prejudice the case: a parallel would be a criminal trial in which the DA has enough evidence to suggest guilt - perhaps not enough to convict - but the issue of guilt is still in doubt. The trial judge will be a different judge than the one seated at the hearing.

Re:Protection

[mmacdona86]

Having one of the devices in question, I can say that it definitively does have copy protection. There's no way to get the recorded songs off the device: hook the device up to a PC, and you can see the songs are there but you can't play or copy them.

Re:Satelitte radio sucks ...

[multisync]

deliver the www to my car

That would be nice. My favorite music station is Radio Paradise, [radioparadise.com] a listener-supported station out of Paradise California. It is my great pleasure to support them for all the enjoyment I get from listening to commercial-free music at work and at home. They are also responsible for the majority of my music purchases (hundreds, if not thousands, of dollars per year), which makes things like the PERRORM Act [slashdot.org] particularly offensive.

But does it matter if in MP3 (w/ reguards to SCMS)

[Fallen Kell]

It physically keeps the MP3's on that device, and that device alone. Without access to being able to get the recording off the device, there is no need to create other methods to protect 2nd generation copying as there is no ability to copy it anywhere else. The copy never leaves the recording device to be distributable. The only way to do that would be to connect an analog recorder to the output of the device, which by the way, would also defeat the copy protections on any other SCMS device (hence the analog hole).

Re:Tape recorders??

[Kimos]

Personally, I think that argument makes about as much sense as the Chewbacca Defense.

In case I'm not the only one who doesn't know what the Chewbacca Defense [wikipedia.org] is...

Re:This is a case...

[IAmTheDave]

I've never understood how a protected right - my right to record music off of a device streaming it to me - be it radio or satellite radio or internet radio - does not in turn make it legal for companies to offer devices that allow me to exercise those rights.

It's like "it's legal for minors to possess, but not purchase, cigarettes."

If I have a right to record music, denying me any device that allows me to exercise that right denies me that right - and so having an act that protects that right is useless to begin with.

Not necessarily going to trial.

[Anonymous Coward]

This decision was in response to XM's motion to dismiss, which requires the court to accept all allegations in the recording industry's complaint as true. Therefore, all this decision is saying is that if what the recording companies say in their complaint is correct, they at least state a claim under the law.

This does NOT mean it is going to trial. It just means the case isn't thrown out immediately. It could go to trial, but first it will have to go through discovery and summary judgment motions, where the parties actually present evidence to the court.

Oh, and IAAL, hence the AC.

Re:I am not a lawyer, but..

[DragonWriter]

Do judges normally give their opinions about a case before it has begun?

The case "began" as soon as it was filed, this ruling is not before the case began. Judges often are called upon to make legal rulings before a case proceeds to trial, as here, which would include determining whether or not, on the facts alleged, the entire cause of action is prohibited by a statute and therefore the case must be thrown out.

Now, admittedly, the summary would have been more accurate if it said "The judge held that, assuming the truth of the factual allegations made by the RIAA, the suit was not clearly barred, as a matter of law, by the AHRA."

This does not mean that the judge agrees with the RIAA's fact claims: presenting evidence to controvert fact claims and resolving the truth of those is a matter for trial.

Re:Protection

[shark72]

"Where do you get that from? The cassette recorder on my home stereo has no such feature neither does the VCR in the attic."

He's referring to the AHRA. He referenced it in his note; it's also in the writeup. Specifically he's referring to the AHRA's requirement that digital audio recording devices have serial copy management systems in place. He was pretty terse; he made the (obviously incorrect) assumption that readers are familiar with the AHRA.

At any rate, the devices you mention aren't likely defined as digital audio recording devices by the AHRA. While you're 100% correct that they don't have SCMS, it's not germane to the discussion.

Re:According to Wikipedia...

[DragonWriter]

It looks like this is saying that you can't sue the makers of any recording device based no the noncommercial use of an infringing consumer. (Not it doesn't stop them from suing the consumer).

First, it does stop you from suing the consumer, which was rather the point of the media tax and the AHRA in the first place.

Second, the RIAA's claim is that XM isn't being sued for manufacturing the equipment, they are being sued for illegal "distribution" of copyrighted content because the combination of equipment and service they provide makes them a distributor, not merely a broadcaster, and they've only paid for a license to broadcast.

If it succeeds, the RIAA probably won't have struck a lasting blow against recording satellite-broadcast music, but may strike an unintentional blow against integration of content delivery services with recording services and hardware, which might indirectly promote interoperability and open standards.

xm

[Anonymous Coward]

some of you obviously don't have xm. how the device records depends on the radio. i have one of the newer ones. when you record, you record whatever has the tag. what i mean is that if i hit record at the begining of.....say....... lacuna coil - swamped.....then it will record until that song is done playing and the tag changes to the next song. now, if i record...say...the oreilly factor.....then it will record until the first commercial (the tag changes to the commercial tag). when the oreilly factor resumes (same oreilly tag) it will not record until you tell it to begin again. the other option is to record a channel constantly, but it clutters the memory with all of the commercials. it saves everything as a seperate file regardless of how you record, even commercials.

i just wanted to clear some of the recording features up. all if they take away my xm/mp3 player, i don't know what i'll do. i'll burn cali down or something. oh wait, it's always on fire......

A quick Macrovision primer

[BigBlockMopar]

Not true. Macrovision works (as I understand it) by making the auto-brightness-adjust of the VCR go nuts.

Pretty close. It's actually the record level, which affects all aspects of the video signal stored on the tape.

Magnetic tape recording devices need to set their record levels so that the tape comes as close as possible to being saturated. Too low, bad signal to noise ratio. Too high, distortion - clipping in audio, and "white clip" (a lack of contrast on bright objects) in video.

VHS uses the vertical blanking interval (that black horizontal bar when the vertical hold control is set wrong) to set the record level - the video is a known state in this bar; it should be black. Some older VHS VCRs did it in other ways, and Betamax/U-Matic also set the record level in other ways. Most professional machines use a manual record level adjustment.

Macrovision simply adds flickering white blocks into the vertical blanking interval. As a result, the VCR's record levels are set wrong. Flashing and flickering are easily implemented by playing with the Macrovision pulse levels during the movie - the VCR's record levels go way off and the recording becomes unwatchable.

When you're simply feeding the signal through the VCR, chances are that the VCR is adjusting the video levels to the TV by using its record level setting mechanism, but since the TV is a lot less sensitive to the variations in signal strength (thanks to an AGC circuit built into the TV), it is not affected anywhere near as drastically as the magnetic tape. This is why you *might* be able to use your VCR as a modulator for your DVD player, but it is by no means guaranteed.

Some older TVs (typically pre-1980) will be affected by Macrovision, typically because their sync separator circuits require the black lines to "recalibrate" after the vertical sync pulse - this is the reason why the NTSC system had such a large vertical blanking interval in the first place. With the advent of non-professional and sometimes unstable video sources (VCRs are notoriously unstable, since the sync they generate depends on tape speed and other mechanical factros), TV set designers were forced to improve sync circuits.

Macrovision is easy enough to remove - after the vertical sync pulse, ensure that there are 22 lines of blackness separated only by horizontal sync pulses, then pass all lines until the next vertical sync pulse completely transparently. An LM1881 sync separator IC, a simple TTL counter and an op-amp are all that is required to scrub Macrovision. My own reason for doing this is to be able to watch DVDs on my collection of 1950s TV sets, most of which lose vertical sync with a Macrovision signal. You could also use a TBC (TimeBase Corrector), since the TBC re-draws all the NTSC sync features as well as compensating for VCR jitter (even a professional analog VTR doesn't produce broadcast-quality sync or timing). I scored a used broadcast quality TBC a few years ago and it does wonders for the stability of my TV collection, especially being able to switch video sources and having the TBC ensure rock-solid sync through the transition.

Oh, and your DVD player actually inserts it when it generates the sync. DVD video files do not include either the horizontal or vertical blanking interval (for one thing, it would waste space on the disc); these NTSC requirements are generated by the DVD player's electronics, and the Macrovision signal in the vertical blanking interval is instead enabled or disabled by an instruction from the disc. I'd also imagine that DVD recorders are susceptible to Macrovision; to enforce copy protection and for design convenience, it would be easy enough to use the vertical blanking interval to set their own black levels just like a VHS VCR.