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XM Radio Faces Setback against RIAA Lawsuit

Postby SlyckTom » Fri Jan 19, 2007 4:59 pm

XM Satellite Radio and P2P networking might as well be on opposite sides of the technological spectrum, but their frequent litigation with the RIAA (Recording Industry Association of America) makes for a good Saturday night date ice breaker. Claiming that XM Satellite Radio’s new "XM+MP3" service disaggregates recordings and permits the creation of music libraries in a similar fashion to iTunes, the music industry filed a copyright violation complaint in May of 2006.

The music industry contends that XM’s license doesn’t permit the service to act like an online music store. The “XM+MP3” service allows the consumer to download perfect, digital copies of satellite transmitted songs and rearrange the play list in any fashion desired. The RIAA has repeatedly stated they are not necessary against sound recording or time-shifting; however they are against reorganizing recordings per genre or artist.

XM defended its position, stating its service is protected by the Audio Home Recording Act. The Audio Home Recording Act (AHRA), passed in 1992, allows for private, non-commercial copying of digital and/or analog recording with a capable device.

"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… or based on the noncommercial use by a consumer of such a device… for making digital music recordings or analog musical recordings.”

Hoping to prevent a drawn out legal battle, XM Radio motioned to have the complaint dismissed based on the AHRA. Unfortunately for XM, their request was denied today by Judge Deborah Batts in U.S. District Court for the Southern District of New York. In her decision, Judge Batts states the provisions of the AHRA have little compatibility with the music industry's lawsuit.

“…XM is not being sued for actions taken in its capacity as a DARD (Digital Audio Recording Device) distributor; therefore, XM is not immunized from this suit under the protection offered by the AHRA.”

In other words, the RIAA doesn't care if XM promotes a device that records music. What does the RIAA care about?

“What the Complaint does allege is that, in providing services specific to users of XM + MP3 players, XM is acting outside the scope of its license for broadcast service – XM’s only source of permission to use their recordings.”

The judge’s ruling is a interesting interpretation of the AHRA, and one that focuses on the act with a very fine legal microscope. Since XM's ability to disaggregate and reorganize music libraries is not part of the deal between the RIAA and XM Radio, they are not protected by its safe harbor provisions - at least not at this stage of the game.

However this is not the end of the legal road for XM Radio, they still have 30 days to respond to the music industry’s complaint. And as evidenced by XM’s reaction in <a href=http://today.reuters.com/news/articleinvesting.aspx?type=hotStocksNews&storyID=2007-01-19T205947Z_01_N19447215_RTRUKOC_0_US-XM-LAWSUIT.xml target=_blank>Reuters</a>, the fight has yet to be taken out of the satellite music provider.
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Postby Ne007 » Fri Jan 19, 2007 5:42 pm

Judge to XM " The RIAA gave us more money than you " *wink*.
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Postby zbeast » Fri Jan 19, 2007 5:53 pm

Well I'm sure that they don't want you to record at all there just using this little loop hole in there contract to try to force xm to disable recording the feature.

What they want is if you don't buy it you can't keep it lets not beat around the bush.
If you have bought it you don't own it you've only rented it and that privilege of renting is not convertible or transferable.
I.E. no ripping. You must buy a new version of the same product for every device and location.
Only because they can do nothing about it they tolerate ripping.
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Postby Nutty-Slack » Fri Jan 19, 2007 6:32 pm

That's one suspiciously well informed judge!

Sounds like they're going to be cleansed of their sins.
The thirty days will at least give them a chance to empty their desks and loot the stationery cupboard.
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Postby Ronny » Fri Jan 19, 2007 9:18 pm

Wow. This world is just drowning in legal bullshit. :(
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Postby the one » Fri Jan 19, 2007 11:46 pm

Ronny wrote:Wow. This world is just drowning in legal bullshit. :(


You just NOW figured this out?:)
Life is what happens to you while you're busy making other plans!
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Re: XM Radio Faces Setback against RIAA Lawsuit

Postby IceCube » Sat Jan 20, 2007 1:51 am

SlyckTom wrote:their frequent litigation with the RIAA (Recording Industry Association of America) makes for a good Saturday night date ice breaker.


What are you implying? :P :lol: ;)

Good article though Tom. :)
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Postby The Old One » Sat Jan 20, 2007 5:55 pm

zbeast wrote:Well I'm sure that they don't want you to record at all there just using this little loop hole in there contract to try to force xm to disable recording the feature.

What they want is if you don't buy it you can't keep it lets not beat around the bush.
If you have bought it you don't own it you've only rented it and that privilege of renting is not convertible or transferable.
I.E. no ripping. You must buy a new version of the same product for every device and location.
Only because they can do nothing about it they tolerate ripping.
Yes, yes... I'm very cynical.
Your not cynical, Your a realist.
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Postby Wham » Sat Jan 20, 2007 6:43 pm

What the judge obviously doesn't understand is the fact that Digital ain't no different than analog. Anyone can convert Digital to analog and vice-virsa.
Oh yea, Digital is much clearer and less noisy. So what?

Converting analog to digital is converting vinal to analog, you do get noise , but the tools are there to clean them up and make a great digital recorded copy from analog. I guess the whole question is, the power's that be don't want to make it easy for the consumer. But, you ain't going to stop copying by trying to make copying digital over the air illegal.

What is different is that when you copy a commercial radio station tune you always loose the beginning or the end of the tune because the diskjocky adlibs onto the tune, so you never get a clean copy of the tune.
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Postby IneptVagrant » Sun Jan 21, 2007 1:02 am

The judge did what he had to do. The problem from our standpoint and XM's is the truthiness used by the RIAA in there complaint. RIAA claims that XM provides the music and resultant MP3s of that music as a service.

We understand that the MP3s are being created from a capture stream, that this stream is the only service provided by XM, and that XM is also providing a device for a cost that converts this stream to MP3s.

But the RIAA didn't present the facts as such. They presented the truthiness of the situation, and the Judge has to rule based on that thruthiness -- later XM will get a chance to challange that truthiness.

We understand that this service, really just a device is no more than a digital recorder. My only question is can anyone provide this service or device or it is somehow strickly limited to XM's abilities because XM decided it should be. In which case I can see RIAA's claim being justifiable, and the only way to avoid the claim is to open up the service to allow anyone's device to capture and convert the stream -- which I don't think XM would do. As long as the system is closed, XM is guilty of saleing a service that it isn't authorized to do. As opposed to saleing a digital recorder, that happens to act on its services.

I hope everyone see the difference I'm trying to explain. Anyone can go buy any radio/tape deck, and record music. But only XM can sale a recorder for XM's service. Is that recorder a service, something only XM is able to offer? Does a user of the recorder buy the right to use the recorder (this would be a service), or the recorder itself (this would be a device)?

Niether RIAA or XM is really a 'good' guy is this case. Both are trying to protect a monopolistic system of revenue.
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Postby Wham » Sun Jan 21, 2007 11:46 am

I see your point Inept, but what I don't understand and probably never will is why does anyone try to protect something that's trasmitted over the airwaves. There just ain't no protecting such a thing unless you scramble it. If you scramble it, how the hell can you make a tune popular so that copies will sell. People have to hear a tune for it to become popular.
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Postby IneptVagrant » Tue Jan 23, 2007 6:13 pm

XM radio works the same way satalite TV works. You pay a monthly fee, and have a 'key' to enable access to the streams. One thing thats important to remember, is that XM isn't trying to sale copies! They are saleing access.

Whats the incentive pay for access w/o content? And thats the more to the point. Whats the content? 3-ways primarily, to attart customers.

Buy known 'popular' content like Howard Stren
Unique content like the Food network.
Mix old content, like the 'oldies'.

Finally offer special previleges like the ability to record anything and play it back later.

--

Once you have a customer base, you do what everyone else does, play random stuff (or what the RIAA tells you to play) and then track what ppl are listening to. Not hard to do. Play more often the stuff ppl are listening to the most, and 'suddenly' you have 'popular' content. Hence the name popular.

The most important thing to remember is something will be popular. You don't have to try to make something popular. You have an audience, the audience will listen to something or stop being an audience. That something is popular -- find ways to attract a larger audience, either by incentive like additional content or services, or advertising whats currently 'popular'. And the audience will decide for you when something newer is now 'popular' and old is not; by viewership, by ratings!

Increase the size of the audience to increase the popularity. Thats all there is to it. Content doesn't have to be free to be popular, just has to have an audience. And ppl are willing to pay a fee to be apart of the audience, be one of the cool kids listening to whats 'popular'.
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