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.'"

This is a case...

[IflyRC]

That I believe WILL go to the supreme court and have a lasting effect on the private usage rights of citizens with regards to music. This could also effect Tivo in the long run as well as any other home recording devices.

Re:This is a case...

[hasbeard]

If it goes to the Supreme Court it might be a good thing. At least we might see some clarification of what is/is not permissible. There some to be some gray areas in copyright law.

Re:This is a case...

[IflyRC]

I don't think there really are that many grey areas. I think judges are just interpreting things on how they personally feel based on idealism or activism in some cases.

The reason they are going after XM is because under the updated Home Audio Recording Act [wikipedia.org] they cannot go after an individual-

"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."

This, IMHO circumvents the "spirit" of the Home Audio Recording Act.

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.

Re:This is a case...

[Anonymous Coward]

Actually this would not effect TiVo or other home recording devices.
The reason the Judge said this case is different is because XM not only acts as a braodcaster of music, but also as a distributor. TiVo is different because a TiVo just records content, it does not determine what is broadcasted.
Will this make a difference in court? I don't know, I hope the case is thrown out though.

Re:

[mattkinabrewmindspri]

How about cable and satellite DVR devices?

Re:

[loganrapp]

God, I hope John Roberts has TiVo.

Re:This is a case...

[Original Replica]

Seriously, we need to give every supreme court judge a TiVo,SlingBox,broadband,video iPod,and laptop, pronto. As they may not have adopted any modern digital/multiformat tastes. They are a kinda old and crusty bunch, being 10 years behind the tech curve could seriously effect the way they view this case.

Re:

[DragonWriter]

Actually this would not effect TiVo or other home recording devices.

It might affect the ability of Cable/Satellite TV providers to provide DVR equipment and service as part of their subscription packages.

Re:

[davek]

IMHO, the US will only revoke laws if BOTH a) the law is unenforceable and b)it can be proven to be morally/ethically wrong. I cite slavery and prohibition as proof of that.

This is what we've got here. The law supposedly protecting the copyright holders "distribution rights" is unenforceable (if one person posts it to the internet, everyone in the world can get it instantly), AND ethically dubious (I don't have the right to personal property anymore with regard to music?).

If we think these statements are

Protection

[rsmith-mac]

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.

If they're not protected, who is?

It isn't as if XM was stretching the rules to fit their case, this situation is exactly what the law is about: individuals recording music off of the radio.

Re:

[KiahZero]

If it doesn't have a way to prevent or restrict second-generation copying, it doesn't fall under AHRA, as best I can tell.

Re:

[GigG]

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

Neither are good examples.

[Kadin2048]

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

I think the assumption was that cassette recorders were inherently such a lossy, low-quality recording, that their "copy protection" was in the generation loss that would naturally occur if a person made a copy of a recorded tape. Within a few generations, it would become unlistenable, or at least severely degraded.

Now, that's not exactly a "second generation" block, but it seemed to suit the courts and the music industry fine.

As far as video, there they were more stringent. Depending on how old that VCR is, it probably has Macrovision, which is essentially a mandatory "analog DRM" (ARM?) system that causes the recorder's tracking to go haywire if it detects a copyrighted signal. It's admittedly not present on early VCRs, but most of them don't produce a particularly good recording (don't have HiFi sound, etc.) unless they're professional models, so it's not a big risk.

Not sure either of those cases are really good ones to be bringing up.

Re:Neither are good examples.

[profplump]

MacroVision is not an aspect of the player, it's an aspect of the media (though in digital media the signal is often inserted by the player, as it would not surive the encoding process). Studio-produced tapes may be MacroVision "protected", to prevent that particular piece of media from being cleanly copied (without a MacroVision supressor). Tapes that you record at home do not include the MacroVision signal, no matter how new your VCR.

http://en.wikipedia.org/wiki/Macrovision [wikipedia.org]

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 vertic

Re:

[edwdig]

VCRs automatically do some cleanup on the incoming signal. Macrovision is a filter applied to the output of a device such as a DVD player which results in no visible change in the picture, but confuses the cleanup processing of the VCR, resulting in a signal with colors that gradually cycle from light to dark and back repeatedly.

Re:

[account_deleted]

Comment removed based on user account deletion

Re:

[whoever57]

The cassette recorder on my home stereo has no such feature neither does the VCR in the attic.

Your VCR does not have Macrovision?

Re:

[3vi1]

Macrovision isn't a feature of VCR's; it's an exploit. You can scrub it before the signal gets to the VCR.

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:

[EllisDees]

Just how do you propose to get the digital data off the device? AFAIK, like the ipod, you cannot move the music off of the player, only onto it.

Re:

[ncc74656]

like the ipod, you cannot move the music off of the player, only onto it.

You can retrieve music from an iPod. Copy everything under iPod_Control/Music to an empty directory (make sure hidden/system files are visible). The files will have odd names, but if you change settings in iTunes so that (1) it'll manage the directory structure of your music and (2) you point it at an empty directory, you can then drag-and-drop the stuff copied from your iPod into iTunes and let it rename/sort the files based on t

Re:Protection

[LoadStar]

Agreed. The recording industry is claiming that the XM portable units turn the service into a subscription music service, much like Napster et.al. However, this infers that the devices have the capability to segment the recording into seperate songs and listen to them at a later point non-sequentially, which they most certainly do not do (nor does it appear that XM has any plans to implement this). Without this ability, there is practically no difference between this and hooking a tape recorder up to the headphone out jack of an XM receiver.

In fact, XM's device is considerably more limited than recording with a tape recorder, as you can only retain the recording for a limited number of days, and you can't listen to recordings if your subscription lapses, as far as I'm aware. XM really bent over backwards to implement a device that would protect the recording industry's interests.

Re:

[vanyel]

It's no different than DirecTiVos, and just as legitimate. All this does is reinforce my resolve to only listen to music I've already purchased and avoid anything new.

Re:Protection

[teh_chrizzle]

Without this ability, there is practically no difference between this and hooking a tape recorder up to the headphone out jack of an XM receiver.

you seem to be stuck on the fact that you can't record individual tracks and create your own playlists. you might also think that it matters the songs cannot be copied from or otherwise accessed by any means other than the playback unit. it all seems very logical but i think that you are missing some key music industry logic.

the device records MP3's from music broadcast on satellite radio. according to the music industry, all MP3's are stolen, including those that that are created for fair use and stored on a device that it is physically impossible to copy them from. er go, the machine encourages the theft of music and threatens the very fabric of civilization.

your argument breaks down because tape recorders record to tapes rather than destroying america with mp3's.

Re:

[gstoddart]

If they're not protected, who is?

It isn't as if XM was stretching the rules to fit their case, this situation is exactly what the law is about: individuals recording music off of the radio.

I think this is a slightly different scenario.

In the case of radio broadcasting, the radio station did not give you the technology to make the recording. They just made the broadcast.

In this case, XM gave the consumer a device which could have the technology to grab any broadcast music directly from the receiver and stor

Re:

[IflyRC]

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. [wikipedia.org]

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:Protection

[ElleyKitten]

In the case of radio broadcasting, the radio station did not give you the technology to make the recording. They just made the broadcast.

So, if a radio station sells cassette recorders or radios that record to SD cards (I have one, it's sweet) that's illegal, but if I pick one up at Best Buy, it's completely not copyright infringement? Even though I'm copying the same thing from the same people in both cases?

And wouldn't that apply to tivos, since most people get tivos from their cable company?

Re:

[ncc74656]

And wouldn't that apply to tivos, since most people get tivos from their cable company?

Cable companies rent out cable boxes with DVR functionality, but I've not heard of one that rents out DVRs built around TiVo's software. Calling a cable-company DVR a TiVo is like calling a Ford Pinto a Porsche 911.

Re:

[syousef]

In this case, XM gave the consumer a device which could have the technology to grab any broadcast music directly from the receiver and store it in MP3. In effect, they are essentially handing you MP3s of the songs they broadcast

You mean the way most walkman style devices, home stereos and portable "ghetto blaster" style radios have allowed you to record a radio station to tape for the last 30 years or so? Yeah it's not MP3. So what. It's trivial to make an MP3 from a tape. Hell if you have a line out on the

Re:

[DragonWriter]

You mean the way most walkman style devices, home stereos and portable "ghetto blaster" style radios have allowed you to record a radio station to tape for the last 30 years or so? Yeah it's not MP3. So what.

The important distinction relevant to why this case was sent to trial rather than being barred by the AHRA from square one is not that the tape recorder is not MP3. The important distinction is that the tape recorder is not provided to you by the subscription-only radio station whose songs you are reco

Re:

[headkase]

It's no different than my Media Center PC. It has one click recording, and XM is complicated so they provide you with a "one button" recording device. It's not how you go about recording off the radio that should be the issue - the case should not be muddled by focusing on the technology used to achieve a goal of recording a song but instead it should be viewed that the Audio Home Recording Act of 1992 absolutely does apply here when you remove the technology of the day and instead focus on what people ar

Re:

[fatboy]

In the case of radio broadcasting, the radio station did not give you the technology to make the recording. They just made the broadcast.

How about GE [wikipedia.org]? They own NBC and make VCRs [amazon.com].

Same thing, right?

Re:

[fistfullast33l]

How about GE? They own NBC and make VCRs.

Yes, but here NBC is the distributor. XM is not a distributor, it's a radio broadcaster. Your analogy would be as if Sony made a CD Burner to record BMG CD's, which they do and people don't argue with. In this case, XM has no ownership over the music it's broadcasting.

I'm not saying that this is a legitimate argument, I'm just pointing out the differences.

Re:

[un1xl0ser]

GE licenses their brand-name to Thomson. Thomson makes RCA products, so this is basically just an RCA VCR.

http://en.wikipedia.org/wiki/Thomson_SA [wikipedia.org]

Judge is obligated to explain...

[WebCowboy]

...why an individual recording music from XM radio to MP3s should be legally differentiated from recording music from FM radio to cassettes--for personal use only on both cases.

The case might be made that by providing the means of making the copy, XM played a more active role in the process -- they were both distrbuting, and aiding the copying by the user. That might be why the judge indicated that ruling may not be applicable here.

That case CANNOT be made. Big conglomerates like Sony and GE both distribut

Re:

[DragonWriter]

Judge is obligated to explain why an individual recording music from XM radio to MP3s should be legally differentiated from recording music from FM radio to cassettes--for personal use only on both cases.

No, because that's not the distinction on which this case was allowed to proceed to trial; its quite clear, in the AHRA, that digital and analog recording are protected identically.

The allegation that the judge found made it a triable question of fact whether the AHRA applied was the RIAA's allegation that

Re:

[dangitman]

That case CANNOT be made. Big conglomerates like Sony and GE both distribute media content (they own publishing, broadcasting, etc. businesses) and manufacture/sell recording devices that aid in the copying of content that is owned both by themselves and their competitors.

Sure it can. Just because they are prosecuting XM and not Sony, does not mean that Sony is legally in the clear. It could be that Sony has given enough money to politicians to avoid prosecution. Or that they may be next on the hit list.

Never underestimate the potential of selective enforcement and abuse of laws.

Re:

[gerf]

If they're not protected, who is?

The home user is. XM can't sell the ability to recieve(broadcast) + record signals. They can sell the ability to recieve, but not to record them at the same time. Only individuals are allowed to record, and apparantly only by using third party hardware.

In the world of licensing, they've paid for the rights to broadcast that music, the same as FM/AM stations. However, they're also selling the ability to record that same music, which isn't something they have license to

Re:

[QuoteMstr]

The license may allow it, but the _law_ does (the home recording act of 1992), and the law trumps a private contract.

Re:

[DragonWriter]

If they're not protected, who is?

People who would be sued for infringement either for recording off the air or for simply manufacturing or distributing a recording device.

XM here isn't in the same position as an independent equipment manufacturer, nor of a usual broadcaster.

I don't think its at all clear that they fall within protected categories in the AHRA, at 17 USC 1008:

No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution o

Re:

[Jim Hall]

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.

If they're not protected, who is?

I know my question isn't about radio, but I think it's related ... I am a Comcast cable TV subscriber, and I have the DVR that came with the service. The function of the DVR is to record shows off the cable ser

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:

[Technician]

not having to pay for electricity, being able to run my Christmas lights 365 days a year,

I was interested in the service when it first came out, but the restricted items in the contract let me know I didn't want to pay that much for that little.

I think it's funny that they have so many restrictions, but as a non-subscriber, I can find things like the Howard Stern show on Bit Torrent. I grabbed one show just to see what the fuss was about. I didn't care for the language. Call me a pirate. There is no way

OOPS!

[Technician]

My cut and paste didn't work and pasted something from another thread.

I meant to paste:

Re:

[Technician]

OK, something strange is going on.

Trying again to paste...

Having one of the devices in question, I can say that it definitively does have copy protection.

Hopefully this time it did paste..

Re:

[dangitman]

My cut and paste didn't work and pasted something from another thread.

Link? The Christmas tree thing sounds more interesting than this discussion.

Re:

[fistfullast33l]

Umm, I believe RIAA has less of a beef with the DRM and more of a beef with the lack of royalty payments. As this analysis [thedealblogs.com] from last spring points out, Sirius did the same thing before XM and now they have to pay royalties for each song that gets downloaded.

Scope of Civil Court questions

[RingDev]

Can you demand a trial by jury in Civil court? And do Civil trials set precedence?

-Rick

Re:

[IflyRC]

I believe this type of case will set a precendent as it does pertain to the copyright law act.

Re:

[cultrhetor]

Yes. In major civil cases - say, someone suing a music company because their teenaged son offed himself after listening to Ozzy Osbourne's "Mr. Crowley" - a jury may be convened in order to determine negligence. In many instances, however, the jury's verdict may be overturned or ignored by the seated judge.

Re:

[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.

Mod Parent Up

[RingDev]

So you can get the trial by jury, but if you do, the case will not hold precedence?

-Rick

Re:

[dosius]

If you're being sued for $20 or more [wikipedia.org], you are guaranteed the right to a jury.

-uso.

War of attrition

[nurb432]

Basic tactics of war, overpower your enemy to the extent sthat even if they are right, they cant outlast you.

Sad really.

This will affect everything

[adamstew]

If the music industry gets it's way, then the content producers could sue the cable companies for distributing DVR products...Say goodbye to Tivo...MythTV...etc.

I sincerely hope this makes it's way to the supreme court and then they get smacked down and told to STFU.

Re:

[FatAlb3rt]

I'm pretty sure MythTV is here to stay since it has nothing to do with the cable company. It can do more than Tivo too.

Re:

[DragonWriter]

If the music industry gets it's way, then the content producers could sue the cable companies for distributing DVR products...

Possibly. XM isn't situated exactly like a cable company; its something of a combination of a set of TV stations and a cable company. Whether any precendent this case sets would be applicable against a cable company is less than clear in advance. But it could be, at least.

Say goodbye to Tivo...MythTV...etc.

Probably not. Tivo and MythTV are both distributed independently of cabl

Tape recorders??

[StarvingSE]

So... when are they gonna sue Sony et al for producing those wonderful boom boxes with tape decks from the early 90s? I mean, practically the same concept here.

Re:

[eln]

I think they're basically saying that fair use doesn't apply to digital copies, because they can be made over and over again with no loss of quality, and be absolutely identical to the original recording. Personally, I think that argument makes about as much sense as the Chewbacca Defense.

Every time a new recording format comes out, the movie and music industries try to stop fair use from applying to it using various idiotic arguments. This case is no different.

Re:

[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:

[j00r0m4nc3r]

when are they gonna sue Sony

Sony IS the RIAA. They would be suing themselves in effect.

Re:

[cultrhetor]

None of the instances in this thread are applicable: VCR manufacturers were sued in the 80s, Sony was sued for blank tapes in the late 70's. The home recording act (which this case is about) states that you can't sue or be sued for development of, or use of, a device that records broadcast media, which is broadcast over

• publicly owned

frequencies. XM is different in two ways: first, it is a paid service and a distributor. TiVo is a paid service, but just a recorder, DVR is the same. XM also does not opera

Re:

[cultrhetor]

oops - didn't mean to make a bulleted list.

Re:

[mspohr]

XM radio does indeed use publicly owned and regulated bands. (All radio frequencies are considered publicly owned and all are regulated by the FCC). In fact, XM radio is is trouble with the FCC for operating 221 of its terrestrial stations out of spec with their license from the FCC... and another 19 are not in authorized locations.

Re:

[DragonWriter]

So... when are they gonna sue Sony et al for producing those wonderful boom boxes with tape decks from the early 90s?

They won't, because those don't get Songs exclusively from the Sony subscription radio network.

That's the key difference from the normal case protected by the AHRA that the RIAA alleged and that the judge here found justified sending the case to trial.

Re:

[drinkypoo]

What about the radio shark? What about FM tuner cards for your PC? These products are both legal and allow you to make a digital copy (At least, from the analog source) which will then never again degrade. Also by that argument any digital recording mechanism with a digital input would be questionable; that includes basically every Minidisc and DAT recorder along with a host of other devices.

Shoot this foot

[simstick]

Satellite radio may have been the big music companies salvation. If they hurt them with actions like this it may finally be over. The only non independent music we have bought in the last two years were things that we heard on satellite and "had to have".

Re:

[DragonWriter]

Satellite radio may have been the big music companies salvation. If they hurt them with actions like this it may finally be over.

Even if timeshifting is the "killer app" that makes the difference between survival and death for satellite radio, an unfavorable decision for XM here won't kill satellite radio. It may force it, however, to find a way to be more "open" so that either account ID information or perhaps a receiver module that can plug into third party hardware that provides various functionality (i

The MP3 acronym terrifies Luddites

[jackelfish]

Would this be such a big deal if the story was about plugging your tape recorder into the line out on your XM radio?

Re:

[m0nstr42]

Would this be such a big deal if the story was about plugging your tape recorder into the line out on your XM radio?

No. But the difference is not trivial.

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.

Do you mean to tell me...

[gillbates]

Someone actually screwed the RIAA for once?

Wow. I thought the RIAA would be able to recognize such an inequitable and one-sided deal...

Re:

[terrymr]

Isn't radio subject to a compulsory license anyway ... ie the library of congress sets the royalty rate. Or is that just "free" radio ?

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?

Re:

[denis-The-menace]

The way I read it:

1008. Prohibition on certain infringement actions alleging infringement of copyright , or or based on the noncommercial use by a consumer of such a device.

IOW: RIAA is screwed or the judge is bought (just like politicians and laws...)

IANAL but I play one here ;)

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.

Re:

[DragonWriter]

In what circumstances could one broadcast anything without distributing it to everyone who receives the broadcast?

Normal broadcasting circumstances.

That's what broadcasting means!

No, broadcasting is ephemeral, distribution is fixed.

Re:

[AK Marc]

No, broadcasting is ephemeral, distribution is fixed.

Broadcasting to a TIVO is broadcasting, not distribution. Broadcasting to a TV antenna plugged into a VCR recording it is broadcasting, not distribution. Both are fixed, not ephemeral.

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:

[greyfeld]

I have spent a lot of time looking this Act over the past few years and I think you have hit part of the nail on the head. There are a couple of questions that need to be answered:

1. Is the device primarily marketed as a means to record digital audio? Sounds like it.

2. Are they paying the royalty fees associated with such devices? Essentially a tax. Not sure.

3. Does the device implement the SCMS (serial copyright management system to prevent copying beyond the first duplication? Probably not if

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 anal

Re:

[Python]

3. Does the device implement the SCMS (serial copyright management system to prevent copying beyond the first duplication? Probably not if they are storing in MP3 format.

For what its worth, the XM recorder I have makes this requirement moot. You can not copy the content off the device. They have a segemented memory partition that keeps the recordings away from your PC. Its certainly possible that someone could debug the hardware and find a way to the content, but out of the box there is no way to cop

Re:We should look back to the Copyright Act of 197

[TommydCat]

I guess it doesn't matter that MP3 does not provide a perfect digital copy of the master recording and/or the commercially available CDs/DVDA/SACD? In fact, the MP3s obtained from satellite radio are generally inferior to anything circulating over the internet via bittorrent/kazaa/what-have-you.

I would submit that while technicalities over being copyright infringement or not can be debated, it should not cause nearly the stir that DAT did, as it results in a much inferior product that does not stand up in

One question for the recording industry:

[foamrotreturns]

When was it decided that digital recording is exempt from the Audio Home Recording Act of 1992? I see that the reasoning behind your argument is that when these digital recorders make a recording, it will not degrade - but when was it decided that personal recordings must degrade in order to be deemed acceptable for the consumer to posssess? Why can your customers not take measures to guarantee that the recordings they make do not fall victim to the ravages of time? If what you've said on many occasions is true and you are indeed selling us the license to the content, not the media, and that license has no expiration date, then why does the longevity of the format have any bearing on its legality? If you want to sell us licenses to the content, give us the ability to recover all of the content in event of loss. If you want us to have to re-purchase the content upon its loss, allow us to take the appropriate measures to protect our investments. You can't have your cake and eat it too.

Wrong Arguement - Prior art exists.

[Technician]

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.'"

They took the wrong arguement. The device in question has full DRM protection. It is not a way to record and keep XM songs.

They need to look at the Rio music player for an example that already has been in the court and prevailed. The XM device is

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.

Re:

[LWATCDR]

I do find it all extremely odd to say the least.
Well it looks as the RIAA got one of the best judges that money can buy.

Re:

[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, assu

Re:

[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:

[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.

Re:

[DragonWriter]

No, the reason the judge found that the RIAA's allegations were not barred by the AHRA is because they alleged that XM through its subscription scheme combined with the recorders it provides has become a distribution service.

Re:

[captainClassLoader]

Distribution service? From where to where? From the car's MP3 unit to the vehicle occupant's ears? An earlier poster who has this service says that the MP3s are DRM'ed, can't be removed from the device, and have expiration dates. And how is this any different from the built-in Tivo-clone in my DISH Network satellite box? My guess is the DISH legal guys are probably tracking this case very carefully, if not actually planning to file an amicus brief.

Re:

[DragonWriter]

Distribution service? From where to where?

From the XM music station's studio to the place where the recorded music is stored in fixed form on the XM provided recorder.

Now, its important to remember here that the judge's ruling does not mean that, in consideration of all the facts, the AHRA does not apply. It means that viewing all the contested facts in the light most favorable to the RIAA, there is a claim stated which could, if proven, entitle the RIAA to recover.

And how is this any different from the bu

Re:

[DragonWriter]

How can the judge say that the AHRA does not apply here? Digital recording is to digital radio as analog recording is to analog radio.

Digitial isn't the issue; the AHRA expressly protects digital technology the same as analog. What the judge held made the case triable (which does not mean the AHRA doesn't apply, it only means the facts which would determine that are legally contested and must be determined through trial) is the RIAA's claimes relative to XM's position as service provider, not just an equip

Re:

[DragonWriter]

So would it be a similar situation if a radio station produced or gave away tape recorders that could be used to record their broadcasts?

Probably not.

What if the tape recorder were locked onto a particular FM frequency?

Maybe so, but its still not as locked as XM is, since if you go somewhere else, the same frequency will give you some other station (if any). The XM device and service are rather tightly integrated, which seems to be the key to the RIAA's chance of success here.

If the RIAA wins, satellite st

Re:

[hairygenes]

The device of concern is the Pioneer Inno (also sold as Samsung Helix). The device allows one to record more than just the current broadcast until the tags change, rather you can record a song, a channel for as long as you want, or you can schedule a recording to start at a particular time and end at a particular time. You can record the music channels or talk. You can hook the Inno up to your computer to manage the recordings (delete commercials, songs, etc.) and it is done inside the XM+Napster softwar

Re:

[account_deleted]

Comment removed based on user account deletion