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...

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...

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...

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...

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...

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:

How about cable and satellite DVR devices?

Re:This is a case...

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.

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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.

Protection

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:

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.

Neither are good examples.

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.

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

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 nee

Re:Protection

"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:Protection

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:Protection

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:

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

Re:

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

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

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:

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 mud

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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?

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.

The case might be made that by providing the means of making the copy, XM playe

Re:

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

Re:

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 o

Re:Protection

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.

Scope of Civil Court questions

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

-Rick

Re:

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

Re:

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 ver

Re:

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 o

War of attrition

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

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 to

Tape recorders??

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:

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 m

Re:

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:

when are they gonna sue Sony

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

Shoot this foot

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".

The MP3 acronym terrifies Luddites

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

This is just a negotiating tactic

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...

Someone actually screwed the RIAA for once?

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

According to Wikipedia...

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:According to Wikipedia...

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.

We should look back to the Copyright Act of 1976

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].

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

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 els

One question for the recording industry:

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.

Re:I am not a lawyer, but..

"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.

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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.

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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

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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

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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 differ