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XM+MP3 Going to Trial

Zonk posted more than 7 years ago | from the everyone-loves-a-court-date dept.

Music 206

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.'"

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This is a case... (4, Insightful)

IflyRC (956454) | more than 7 years ago | (#17687408)

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... (4, Interesting)

hasbeard (982620) | more than 7 years ago | (#17687496)

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... (5, Insightful)

IflyRC (956454) | more than 7 years ago | (#17687672)

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... (4, Informative)

IAmTheDave (746256) | more than 7 years ago | (#17688554)

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... (4, Interesting)

Anonymous Coward | more than 7 years ago | (#17687662)

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:This is a case... (2, Insightful)

mattkinabrewmindspri (538862) | more than 7 years ago | (#17688116)

How about cable and satellite DVR devices?

Re:This is a case... (2, Funny)

loganrapp (975327) | more than 7 years ago | (#17688478)

God, I hope John Roberts has TiVo.

Re:This is a case... (2, Insightful)

DragonWriter (970822) | more than 7 years ago | (#17688844)

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:This is a case... (0, Insightful)

Anonymous Coward | more than 7 years ago | (#17687674)

Linux is only free if your time is worthless.


"Free software is a matter of liberty, not price." [gnu.org]

It takes time (and money) to learn proprietary software too.

Re:This is a case... (1)

stangbat (690193) | more than 7 years ago | (#17687952)

It probably will go to the SCOTUS. But the sad thing is that if the music companies lose, their next step will be to bribe, excuse me, lobby Congress to pass legislation that will make digital recording of digital radio illegal. If the law doesn't favor your side, drop some money to change it so that it does. This mess will be in the courts or in front of Congress for years. I'm not cynical, am I?

Re:This is a case... (2, Insightful)

davek (18465) | more than 7 years ago | (#17688502)

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 true, then this case (or one like it) will eventually go to the highest American court, and they will rule these statements _as_ true. After that the legislators will have to battle it out.

America has a lot of problems, but one thing it cannot accept FOREVER is legal contradictions. They can go on for years, even generations, but not forever.

-dave

Re:This is a case... (1)

amRadioHed (463061) | more than 7 years ago | (#17688790)

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.
Those would be evidence, not proof. You need a lot more than that to show that every unenforceable and unethical law gets revoked.

Also, prohibition was not ended it was just changed from alcohol to pot thus making it even more unenforceable and more ethically puzzling. From there it has grown to include many other substances of varying absurdity.

Civil Rights ( or lack thereof) Alert +2 (-1, Offtopic)

Anonymous Coward | more than 7 years ago | (#17687414)


Courtesy of Cursor [cursor.org]

The next two years are going to be "a rolling constitutional crisis," predicts Paul Krugman, arguing that a "purge of U.S. attorneys" by a president no longer able to count on Congress to do his bidding is a sign that he is more determined than ever to "claim essentially unlimited authority."

During testimony that Sen. Patrick Leahy likened to "Alice in Wonderland," Attorney General Gonzales told the Senate Judiciary Committee that "the Constitution doesn't say that every individual in the United States or every citizen has or is assured the right of habeas corpus."

Patriotically,
Kilgore Trout, ACTIVIST

Re:Civil Rights ( or lack thereof) Alert +2 (-1, Flamebait)

Anonymous Coward | more than 7 years ago | (#17687536)

"purge of U.S. attorneys", you mean like the one Bill Clinton did when he first took office, by firing EVERY tehn current U.S. attorney and replacing them with his own choices with exactly one exception because then Senator Bill Bradley of New Jersey expressly asked him to keep on the U.S. attorney in New Jersey.

Protection (4, Insightful)

rsmith-mac (639075) | more than 7 years ago | (#17687424)

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:Protection (1)

KiahZero (610862) | more than 7 years ago | (#17687648)

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:Protection (2, Insightful)

GigG (887839) | more than 7 years ago | (#17688292)

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. (4, Interesting)

Kadin2048 (468275) | more than 7 years ago | (#17688424)

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. (3, Insightful)

profplump (309017) | more than 7 years ago | (#17688894)

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]

Re:Protection (1)

whoever57 (658626) | more than 7 years ago | (#17688620)

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:Protection (4, Insightful)

LoadStar (532607) | more than 7 years ago | (#17687652)

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 (1)

vanyel (28049) | more than 7 years ago | (#17688400)

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 (2, Interesting)

gstoddart (321705) | more than 7 years ago | (#17687676)

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 store it in MP3. In effect, they are essentially handing you MP3s of the songs they broadcast/

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.

(And, I guess the standard: "IANAL, void where prohibited, prohibited where void, consult your own lawyer, etc" all apply here)

Cheers

Re:Protection (1)

IflyRC (956454) | more than 7 years ago | (#17687730)

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 (3, Informative)

gstoddart (321705) | more than 7 years ago | (#17687880)

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 (3, Interesting)

ElleyKitten (715519) | more than 7 years ago | (#17687846)

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:Protection (1)

syousef (465911) | more than 7 years ago | (#17687864)

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 player, it's trivial to skip the tape all together and go straight to MP3.

Re:Protection (2, Insightful)

headkase (533448) | more than 7 years ago | (#17687914)

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 are doing. I believe the real motivation for this suit is obviously greed; RIAA hates to see any content become part of any library without paying them money - so they will pursue every avenue to shut out everything but them.

Re:Protection (2, Insightful)

fatboy (6851) | more than 7 years ago | (#17688086)

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:Protection (0)

Anonymous Coward | more than 7 years ago | (#17688216)

How about Dish Network and DirectTV selling receivers with DVRs?

Re:Protection (1)

fistfullast33l (819270) | more than 7 years ago | (#17688446)

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.

Judge is obligated to explain... (2, Insightful)

WebCowboy (196209) | more than 7 years ago | (#17688602)

...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 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. The act applies to them...so why can't it apply to XM Radio?

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

GE gives the consumer a device which could have the technology to grab any broadcast television signal directly from a receiver and store it in VHS tapes. In effect, they are essentially handing you videotapes of the shows they broadcast. Sony is the same thing. I fail to see the legal difference that makes GE more special than XM.

So, I'd be curious to hear the REAL reason the judge thinks this is different from a legal standpoint...or perhaps money is talking?

Re:Protection (2, Interesting)

gerf (532474) | more than 7 years ago | (#17687942)

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 do. The end-user has that right, but not the broadcaster

That would be like iPods allowing streaming music (which you can do on a network), and then also allowing you to record that music for your personal playlist without paying for it. That's not something that's allowed under their licensing

Re:Protection (1)

QuoteMstr (55051) | more than 7 years ago | (#17688228)

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

Re:Protection (1)

EComni (998601) | more than 7 years ago | (#17688004)

From the AHRA

(a) PROHIBITION ON IMPORTATION, MANUFACTURE, AND DISTRIBUTION.--No person shall import, manufacture, or distribute any digital audio recording device or digital audio interface device that does not conform to--

        (1) the Serial Copy Management System;
        (2) a system that has the same functional characteristics as the Serial Copy Management System and requires that copyright and generation status information be accurately sent, received, and acted upon between devices using the system's method of serial copying regulation and devices using the Serial Copy Management System; or
        (3) any other system certified by the Secretary of Commerce as prohibiting unauthorized serial copying.


I know nothing about this XM device in question, but my guess is that, since it's called XM+MP3, it probably has no copy-protection scheme, and that's likely why the record companies and this judge have their undies in a wad.

If it does, then never mind.

Re:Protection (4, Informative)

mmacdona86 (524915) | more than 7 years ago | (#17688098)

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.

Huh. (1)

EComni (998601) | more than 7 years ago | (#17688266)

Well, you can't say I didn't gave them the benefit of the doubt. I'm getting back into the "Down with the RIAA" mob. Where's my torch and pitchfork?

Re:Protection (1)

Technician (215283) | more than 7 years ago | (#17688728)

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 I would pay for that crap.

I can't believe the media providers are having a lawsuit over this highly DRM'ed almost useless item.

OOPS! (1)

Technician (215283) | more than 7 years ago | (#17688758)

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

I meant to paste:

Re:OOPS! (1)

Technician (215283) | more than 7 years ago | (#17688820)

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:Protection (1)

fistfullast33l (819270) | more than 7 years ago | (#17688504)

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.

Re:Protection (1)

DragonWriter (970822) | more than 7 years ago | (#17688672)

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 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.


XM is being sued as a service provider, not for the manufacture of the equipment.

Re:Protection (1)

Jim Hall (2985) | more than 7 years ago | (#17688702)

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 service for private use. So if the judge believes XM isn't protected by the Act, what does it mean for cable companies that provide the DVR? It's essentially the same issue - the company I subscribed to is the one who provided me the technology device that allows me to record content for private use, to consume at a later time.

Scope of Civil Court questions (1)

RingDev (879105) | more than 7 years ago | (#17687438)

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

-Rick

Re:Scope of Civil Court questions (1)

IflyRC (956454) | more than 7 years ago | (#17687460)

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

Re:Scope of Civil Court questions (1)

cultrhetor (961872) | more than 7 years ago | (#17687762)

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:Scope of Civil Court questions (1)

GoodbyeBlueSky1 (176887) | more than 7 years ago | (#17688310)

I'm pretty sure you meant to say "Ozzy Osbourne's 'Suicide Solution'"

Re:Scope of Civil Court questions (2, Informative)

Alchemar (720449) | more than 7 years ago | (#17687850)

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 (1)

RingDev (879105) | more than 7 years ago | (#17688286)

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

-Rick

Re:Scope of Civil Court questions (1)

dosius (230542) | more than 7 years ago | (#17688360)

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

-uso.

War of attrition (1, Interesting)

nurb432 (527695) | more than 7 years ago | (#17687452)

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

Sad really.

I am not a lawyer, but.. (1, Insightful)

Anonymous Coward | more than 7 years ago | (#17687456)

"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.

Re:I am not a lawyer, but.. (4, Informative)

fishybell (516991) | more than 7 years ago | (#17687556)

"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:I am not a lawyer, but.. (1)

MerrickStar (981213) | more than 7 years ago | (#17687582)

That's where "believe" comes into play. Basically she's putting the burden of proof onto the side for XM + MP3 players.

Re:I am not a lawyer, but.. (2, Informative)

cultrhetor (961872) | more than 7 years ago | (#17687890)

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:I am not a lawyer, but.. (1)

LWATCDR (28044) | more than 7 years ago | (#17687596)

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:I am not a lawyer, but.. (2, Informative)

DragonWriter (970822) | more than 7 years ago | (#17688906)

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.

This will affect everything (2, Insightful)

adamstew (909658) | more than 7 years ago | (#17687468)

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:This will affect everything (1)

FatAlb3rt (533682) | more than 7 years ago | (#17688160)

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.

Twofo is dying (-1, Offtopic)

Anonymous Coward | more than 7 years ago | (#17687472)

Twofo [twofo.co.uk] Is Dying
It is official; Netcraft confirms: Twofo is dying

One more crippling bombshell hit the already beleagured University of Warwick filesharing community when ITS confirmed that Twofo market share has dropped yet again, now down to less than a fraction of 1 percent of all file sharing. Coming on the heels of a recent Netcraft survey which plainly states that Twofo has lost more market share, this news serves to reinforce what we've known all along. Twofo is collapsing in complete disarry, as fittingly exemplified by failing dead last in the recent Student comprehensive leeching test.

You don't need to be one of the Hub Operators to predict Twofo's future. The hand writing is on the toilet wall: Twofo faces a bleak future. In fact there won't be any future at all for Twofo because Twofo is dying. Things are looking very bad for Twofo. As many of us are already aware, Twofo continues to lose users. Fines and disconnections flow like a river of feces.

N00b Campus users are the most endangered of them all, having lost 93% of their total share. The sudden and unpleasant departures of long time Twofo sharers fool_on_the_hill and Twinklefeet only serve to underscore the point more clearly. There can no longer be any doubt: Twofo is dying.

Let's keep to the facts and look at the numbers.

Sources indicate that there are at most 150 users in the hub. How many filelists have been downloaded? Let's see. 719. But 1621 Ip addresses have been logged, and 1727 nicks have been sighted connecting to one user over the last term. How many searches are there? 600 searches in 3 hours.

Due to troubles at the University of Warwick, lack of internet bandwidth, enforcements of Acceptable Usage Policies, abysmal sharing, retarded leechers, clueless n00bs, and ITS fining and disconnecting users, Twofo has no future. All major student surveys show that Twofo has steadily declined in file share. Twofo is very sick and its long term survival prospects are very dim. If twofo is to survive at all it will be among p2p hardcore fuckwits, desperate to grab stuff for free off the internet. Nothing short of a miracle could save it at this point in time. For all practical purposes, Twofo is dead.

Fact: Twofo is dying

Tape recorders?? (2, Insightful)

StarvingSE (875139) | more than 7 years ago | (#17687486)

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:Tape recorders?? (1)

eln (21727) | more than 7 years ago | (#17687692)

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:Tape recorders?? (2, Informative)

Kimos (859729) | more than 7 years ago | (#17688442)

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:Tape recorders?? (1)

mdm-adph (1030332) | more than 7 years ago | (#17687708)

goodness -- not to mention the retroactive lawsuits against VHS, if I'm seeing this correctly. Oh my god -- Ben Franklin's typesetting machine's probably next!

Re:Tape recorders?? (0)

Anonymous Coward | more than 7 years ago | (#17687734)

There is a slight difference in that the more copies you make of a tape, the more the quality degrades, thus not really making it all that worth giving it to all your friends. The more you copy an mp3... well, it doesn't degrade in quality unless you're a weirdo and burn it as an audio track and re-rip the CD.

Re:Tape recorders?? (1)

drinkypoo (153816) | more than 7 years ago | (#17687780)

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.

Re:Tape recorders?? (1)

j00r0m4nc3r (959816) | more than 7 years ago | (#17687744)

when are they gonna sue Sony

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

Re:Tape recorders?? (1)

multisync (218450) | more than 7 years ago | (#17687878)

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


They already have, [wikipedia.org] sort of.

(Universal Studios and Walt Disney Compnay) therefore opted to sue Sony and its distributors in the U.S. District Court for the Central District of California in 1976, alleging that because Sony was manufacturing a device that could potentially be used for copyright infringement, they were thus liable for any infringement that was committed by its purchasers.


They lost that one. I have a feeling we won't be so lucky this time.

Re:Tape recorders?? (1)

cultrhetor (961872) | more than 7 years ago | (#17687956)

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 operate within publicly owned or regulated bandwidths.

Re:Tape recorders?? (1)

cultrhetor (961872) | more than 7 years ago | (#17687996)

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

Re:Tape recorders?? (1)

mspohr (589790) | more than 7 years ago | (#17688500)

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:Tape recorders?? (1)

tygt (792974) | more than 7 years ago | (#17688724)

Even if a broadcaster has a license to operate over some frequency, radio is still "publicly owned" - the US gov't didn't give it up with the license. AM, FM radio stations also have a license to broadcast.

http://en.wikipedia.org/wiki/Xm [wikipedia.org] states:

October [1997]: XM Satellite Radio obtains one of only two satellite digital audio radio service licenses offered by the Federal Communications Commission.
While wikipedia may not be the ultimate authority, we can still probably derive from the above statement that the communication band used by XM apparently required a license, and thus operates over "publicly owned or regulated bandwidths".

Shoot this foot (3, Interesting)

simstick (303379) | more than 7 years ago | (#17687494)

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 (1)

jackelfish (831732) | more than 7 years ago | (#17687500)

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:The MP3 acronym terrifies Luddites (1)

m0nstr42 (914269) | more than 7 years ago | (#17688432)

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.

The Curling League Of Saskatoon approved this msg (-1, Offtopic)

Anonymous Coward | more than 7 years ago | (#17687518)

Saskatoon, the once-important town on the Wampum frontier, is a small hamlet where the Grand Micksupp of the Order of Shad-Elks once rode a unicycle in the Meat-Packers Union parade to protest the unfair treatment of people with peg legs, including those from nearby Winnipeg (or Losapeg depending on your luck).

The meat packing industry had a real problem with the peg legged. For instance, if a peg got jammed in a meat grinding machine, the machine was often damaged whereas if a normal let were to get caught in the gears, well... free meat!

The Curling League was formed July 4th 1833 after a hard day's packing and a heavy night's drinking and half-hearted game of Guess-The-Willy. Like most drunken ideas, it seemed like a good one, and no one really had anything better to do anyway.

When the citizens of Saskatoon couldn't find anyone who could explain what the sport of Curling actually was, the League disbanded and its members joined the local Adventure Club instead.

The Adventure Club, single-mindedly searching for the most extreme place to drink tea, had everyone move to the Yukon territory where they would adventurously smear whale blubber on their foreheads and shout mild obscenities at the elderly Inuit in addition to drinking tea.

Entirely appalled by the crudeness of the white men, the Inuit adopted an typical stance on these odd intruders: they would trade them ikiliki, frozen walrus dung pressed into tiny packets resembling ancient slices of sausage.

Of course, adventurous people (tourists) gladly accepted this crap and regarded the Inuit as "amazingly advanced.. you know... considering".

Later the Curling League of Saskatoon reformed and almost won a championship, but not quite.
--
I particularly enjoy rubbing your noses in my towering intellect. On a personal note, I am an avid mustard enthusiast.

Satelitte radio sucks ... (-1, Offtopic)

guysmilee (720583) | more than 7 years ago | (#17687540)

Satelitte radio sucks and it will fail ... deliver the www to my car ... and i'll pay for that ...

Re:Satelitte radio sucks ... (0)

Anonymous Coward | more than 7 years ago | (#17687620)

Yeah. We really need people downloading porn and posting to MySpace while driving. It's not like it's bad enough with people watch TV and talk on cell phones.

Re:Satelitte radio sucks ... (2, Informative)

multisync (218450) | more than 7 years ago | (#17688210)

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.

Am I seeing this correctly? (1)

Normal Dan (1053064) | more than 7 years ago | (#17687570)

The reason XM isn't protected by the 1992 act is because they are allowing users to store songs on the device? Does this mean if they gave the user a way to retrieve the music from the device and store it elsewhere, it would be fine?

I don't get it (1)

ThanatosMinor (1046978) | more than 7 years ago | (#17687598)

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. It's so clearly related that one could even use the example to define what an analogy is.

This is just a negotiating tactic (5, Informative)

Jack Pallance (998237) | more than 7 years ago | (#17687668)

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... (4, Informative)

paladinwannabe2 (889776) | more than 7 years ago | (#17687726)

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... (0)

Anonymous Coward | more than 7 years ago | (#17688080)

It applies to more than just analog recordings, that just says that all analog recordings are allowed, whereas digital recordings are restricted in certain ways.

Re:According to Wikipedia... (1)

denis-The-menace (471988) | more than 7 years ago | (#17688262)

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... (1, Interesting)

Anonymous Coward | more than 7 years ago | (#17688888)

You have to look at how the AHRA defines a digital recording device. All digital analog recording devices are included, but digital audio recording devices are defined in the ACT as limited to devices for which a royalty is to be paid. If the device qualifies, then the device manufacturer is supposed to be paying royalties.

The AHRA isn't going to work. They'd be better off using a Sony type significant non-infringing use with the added argument that they don't induce infringement.

Link to the Recording Act Mentioned in the Article (0)

Anonymous Coward | more than 7 years ago | (#17687750)

Here is a link to the some of the act. http://www.virtualrecordings.com/ahra.htm [virtualrecordings.com]
The wording in the act just furthers my belief that we need to get lawyers out of office so they do not write such BS drivel. I have seen VB code that is written better and more clearly.

Just one question can decide this case (1)

Geak (790376) | more than 7 years ago | (#17687782)

This from wikipedia:

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.


So the only question is whether or not the device was marketed for the purpose of recording off the radio, or if it's primary function was for just listening to the radio.

Go Pirate Bay Go! (1)

AricC (912483) | more than 7 years ago | (#17687800)

If they [buysealand.com] buy Sealand we can download anything we f'n want from a sovereign nation. Wouldn't life be grand?

We should look back to the Copyright Act of 1976 (3, Informative)

monkeyboythom (796957) | more than 7 years ago | (#17687810)

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:We should look back to the Copyright Act of 197 (1)

greyfeld (521548) | more than 7 years ago | (#17688192)

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 they are storing in MP3 format.

4. Lastly, the Act goes into detail about recording mediums and that they must also have the royalty paid (this is why blank CD's for MUSIC cost more than CD-R). I would assume that the recording medium is some kind of reusable flash memory and that the royalty is not paid.

Their lawyers should know better, as the Act itself is really pretty clear on what can be used to make digital copies of audio recordings. If they had made a set-top box that stored the recordings and then let you edit and burn them to a music-cd, they probably would have had a leg to stand on, but the decision to use MP3's while popular with the public is probably a death knell to the device.

This act is why you can go into Best Buy and purchase a CD-Recorder, although they are becoming scarcer, with which to make legal copies of copyrighted CD's for your own personal use. With those devices, upon which the royalties have been paid and by using the Music-cd's for which royalties have been paid, you can not be prosecuted for copyright infringement. At least, that is the way I read the law. NOTE IANAL!!!

Re:We should look back to the Copyright Act of 197 (1)

ACMENEWSLLC (940904) | more than 7 years ago | (#17688396)

My XM Radio is RIAA crippled. I can record up to 5 hours of XMRadio on it, but I can not take it off of the device. Of course, nothing stops a lineout recording, but that's true on any device like this. Macromedia's not in these type of devices yet.

But does it matter if in MP3 (w/ reguards to SCMS) (2, Informative)

Fallen Kell (165468) | more than 7 years ago | (#17688438)

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:We should look back to the Copyright Act of 197 (1)

TommydCat (791543) | more than 7 years ago | (#17688666)

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 quality to the original sources. I could compare it to someone making a VHS tape copy of a DVD then being able to make perfect copies of that VHS tape...

I call shenanigans! (1)

countSudoku() (1047544) | more than 7 years ago | (#17687922)

Funny how 1010wins.com, an old-fashioned terrestrial radio station, is so absorbed in this that they had to repost that AP article. Perhaps if they bothered to make a station with some real content and worth listening to less people, like myself, would bother to actually pay for satellite radio content. Heck we might even stop using our car radios as short-range FM receivers for our satellite radios, foregoing any outside broadcasts. Not likely. Thanks for the FUD 1010wins, but your days are numbered and you could give two shits about the "recording industry" getting "stiffed" by people abusing that mean old "fair use" concept. Rather, me thinks you are hot to get some industry and government officials riled at your direct, and superiour, competition.

Not that satellite radio could ever be fair competition to crappy, watered down, commercial-full, non-digital terrestrial radio. That was unintentional and unfortunate.

Ah, crap (1)

elmedico27 (931070) | more than 7 years ago | (#17688368)

Looks like I'm gonna have to toss out all my cassette tape decks too, just to be safe. You know, since the courts are going to wipe their asses with the Audio Home Recording Act.

Not necessarily going to trial. (1, Informative)

Anonymous Coward | more than 7 years ago | (#17688566)

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.

If they don't win, a lot of people are in trouble (1)

insomniac8400 (590226) | more than 7 years ago | (#17688638)

As long as the device doesn't just start recording automatically, XM will be safe. If a device that records audio is deemed illegal, the lawsuits are going to be crazy.

How stupid is this! (1)

alexborges (313924) | more than 7 years ago | (#17688746)

I have my old 80's dual deck tape recorder....

Will I get sued too? Will Sony? I mean, they sold me the recorder in the first place.... hey, with my dual deck TR i can even mix my own music (imagine that)

One question for the recording industry: (2, Interesting)

foamrotreturns (977576) | more than 7 years ago | (#17688764)

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.
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