Radio TiVo

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Another day, another gang of content companies files suit against a useful innovation:

The recording industry accuses XM Satellite Radio of "massive wholesale infringement" because of a $400 iPod-like device that allows XM customers to record up to 50 hours of music and automatically parse recordings by song and artist. The "Inno" is sold under the slogan, "Hear it, click it, save it."

The lawsuit, filed Tuesday in New York by the largest labels, seeks $150,000 in damages for every song copied by XM Satellite customers using the devices, which went on sale weeks ago. The company says it plays 160,000 different songs every month….

XM Satellite has compared its new device to a high-tech videocassette recorder, which consumers can legally use to record programs for their personal use. It also says songs stored on the device from its broadcasts can't be copied and can only be played for as long as a customer subscribes to its service.

The real issue: XM already pays the same performance license required of terrestrial radio stations, but "has balked at the recording industry's efforts to collect expensive distribution licenses similar to those required for Internet downloading services, such as Apple Inc.'s iTunes." America's other satellite radio service, Sirius, pays the extra fee. I assume it costs a bit less than $150K per song.

Gigi Sohn of Public Knowledge has more.

NEXT: Enron Endgame (Stifled Yawn Edition)

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  1. I glad this is being resolved in the shadow of the courthouse rather than in the shadow of K Street. It is a healthier shadow.

  2. It is legal to record regular radio with a cassette and Cable TV with a VCR, isn’t it? I don’t see how this can be viewed differently.

  3. The RIAA is trying to cow them with the legal expenses, since they’ll be more than licensing expenses. This is why civil suits should have a loser pays component*.

    * Of course the downside of that is that in the endgame, if one side looks like the clear winner, the winning team’s lawyers have an incentive to jack up all sorts of ludicrous charges.

  4. ARRRGGGGHHHHHEEEEEE!!!! This is personal. I am an XM subscriber and I cannot recommend it enough. They play everything one can want. I have both a built-in unit in my van and a Delphi portable, which, by the way, allows me to record an hour or so of XM shows. The Delphi unit has been available since last fall, so I don’t know why this new thing is such a big deal. XM is the only thing that makes commuting in the godawful southwest Austin traffic remotely palatable. (Austin radio stinks. We have a choice between an okay NPR station and ten versions of Clear Channel crap.) This is just one more, I hope futile, effort by the broadcasters to stifle their competition. Instead of doing something radical and innovative to compete, like playing good music, they decided to spend the extra money on litigation instead. I hope they die.

  5. The RIAA is trying to cow them with the legal expenses, since they’ll be more than licensing expenses.

    I don’t doubt that the RIAA is trying to use legal expenses to its strategic advantage, but how do you know that the legal expenses are more than the amount of licensing money at stake here?

    Are the amount of the legal expenses a matter of public record somehow?

  6. I have both a built-in unit in my van and a Delphi portable, which, by the way, allows me to record an hour or so of XM shows.

    Let’s see: The average song is 4 minutes — 60/4 = 15 — 15 * 150,000 = $2,250,000. What was your home address again, Ms. Cox? We’ll be sending someone by this afternoon to pick up the check. Please make it payable to “RIAA”. (Cashier’s, not personal, obviously.)

  7. XM is the only thing that makes commuting in the godawful southwest Austin traffic remotely palatable.

    Revenge of the city planners?

  8. Mr. RIAA, I have to tell you I’ve never actually used the recording funtion. You can’t have my iPod. I pay the mordida, er, licensing fees, for that one.

  9. I had this discussion this morning…

    XM music selection is not on demand therefore:
    XM = broadcast.

    It’s no different than the digital music channels from cable and satellite TV providers.

    I have no idea what RIAA is trying to prove here (we already know they are idiots.)

  10. It is legal to record regular radio with a cassette and Cable TV with a VCR, isn’t it? I don’t see how this can be viewed differently

    The only distinction I have heard is that beacuse its a digital copy and not an analog copy, there is no degradation of the quality when making copies. Somehow these companies believe that because you can make a copy that is of the same quality as the original, somehow that makes digital recording devices different.

    That’s really the only reason I have heard/read that justifies re-fighting the Betamax case.
    Although, TiVo would seem to blow that theory away — since they make digital recordings that don’t degrade quality. (Well it might, since most traditional TiVo’s have a quality setting for recordings and lowers settings have more pixelation….but whatever)

    In an article I read, XM claimed (take it for what it’s worth) that the RIAA is merely trying to use the lawsuit as negotiating leverage — which wouldn’t surpise me if it’s true.

  11. therefore:
    XM = broadcast.

    The Parents Television Council couldn’t agree more.

  12. Brought to you by the same mentality (RIAA, ASCAP, what’s the difference) who netted a $0 royalty residual by wrecking “WKRP in Cinncinnati” re-runs.

  13. I wrote about this issue about 5 years ago as a young tech/media analyst for a market research firm.

    I was speculating about how ‘within 5 years’ (I guessed) the lines between ‘broadcast’ and ‘on demand’ consumption would start to get blurred to the point of irrelevancy. What surprises me so much is that none of the companies that read these white papers we wrote actually ever moved on this issue pre-emptively. If an idiot like me saw it coming, i can’t believe these satellite radio people hadnt considered cleaver ways to dance around it.

    We’re quickly getting to the point where ‘broadcast’ is basically a lot like just hitting ‘shuffle’ on your ipod. (if the shuffle were slightly more intelligent…which it’s getting) Where the content is hosted (locally or on streaming servers) is really becoming kind of arbitrary. The same thing is what’s going to shake up the software industry, with microsoft competing with ASPs like google in markets that used to be ‘products’ rather than services.

    The flexible time shifting abilities of devices like TiVo make a ‘broadcast’ into something more akin to a gradually changing data set. As long as your device stores a scannable window of time (e.g. last 4 hours?), for all practical purposes you’re dealing with content, not a broadcast. The legal definitions of these things are running up against some difficulty, since the older standards dont apply as cleanly. Or the ones that they compromise on 3 years ago become undone by some minor tweaks/developments in the technology.

    As for the ‘not on demand’… that too is a weird definition that may lose currency. “Push vs. Pull’ technologies can be integrated and have overlapping features. If you’ve got 200-channels of content to choose from… I would argue that those choices give the consumer fairly specific content options. Imagine if the ‘broadcast’ service publishes their forthcoming playlists? i.e.you know what the content of the data stream will be well before its “played”. Like TV guide. That provides i think an angle that makes it much closer to ‘on demand content’…at least within the limitations of a DJ’s chosen genre.

    Anyway, this is getting into marshall mcluhan territory now. I enjoy the conceptual issues with evolving media much more than I like the media tools themselves. I prettty much only watch PBS, sports, and still listen to most of my music on a turntable. 🙂 So much for media revolutions.

    JG

  14. The sound quality of the XM music bands is very poor. When I first got XM I was jacked to find all kinds of new stuff, but I can?t stand listening to the music. It sounds like its piped through a tin can. Until they cut channels or wrestle more bandwidth I don?t see the value of recording music. News, comedy, talk, whatever; but not music.

    All the music I listen to has been ripped. Maybe I?m not typical, but if I am, the RIAA is shooting themselves in the foot pushing all this DRM crap. CDs are too cumbersome in the car, effectively reducing their value. As it is I have the contents of every CD I own at my fingertips in my auto. I know I buy more CDs now that I have the digital player. I get more use out of them so they are worth more. If it?s a struggle to rip they are less valuable to the average tech frustrated consumer.

  15. It is legal to record regular radio with a cassette and Cable TV with a VCR, isn’t it? I don’t see how this can be viewed differently.

    Overgeneralization. The big US case on this is Sony v. Universal. That case found that it was okay to record TV shows for the purpose of time-shifting, which seemed to be understood as temporarily recording a show whose broadcast you paid to receive, but which you could not watch when broadcast.

    I don’t think the Sony court opined on whether all forms of recording by VCR were legal. Specifically, I don’t think they said it was okay to permanently archive tv shows on VCR tape and watch the archival copies whenever you want. As fara as I know, there hasn’t been a definitive determination of whether that popular practice is okay or not.

    I don’t know of any cases that involve the common situation of taping a song off the radio. One might argue that this is not like timeshifting because people tend to make repeated use of songs more than they make repeated use of TV shows. Also, hit songs tend to get broadcast more often than popular tv shows. These things might or might not make a difference if a court were to actually do a fair use analysis in the context of taping off the radio.

    Now, please don’t take any of this as a comment on what I think the “fair use” and associated “contributory infringement” and “vicarious liability” standards should be. I am just trying to let you know what the law has thus far decided and not decided.

    I don’t think that the law has effectively decided the XM case or that it is frivolous. The case is probably more about developing a fair licensing scheme for the industry so that players with adverse interests can work together and let Karen keep burning that gas with added glee and not too many Hamiltons.

    I know it is easier to denigrate lawyers if you believe that every case is frivolous and mostly about lawyer fees. Problem is it ain’t that way always or even usually. Don’t succumb to the temptation to believe something because it is pleasant or convenient (or because your investment manager guy told it to you).

    Finally, I have paid some licensing fees myself for the privilege of having a radio loop up on the Net, accessible for your personal lissening pleasure. So don’t forget to check out the music and comedy that that nut Dave W. prefers:

    http://www.live365.com/stations/farces

  16. In an article I read, XM claimed (take it for what it’s worth) that the RIAA is merely trying to use the lawsuit as negotiating leverage — which wouldn’t surpise me if it’s true.

    Standing on their legal rights and potential legal rights instead of merely appealing to the better angels of XM (and their customers) nature. For shame!/sarc

  17. From Gigi Sohn of Public Knowledge link =

    “I just don?t buy the download argument. It?s not like you can export the music onto your computer or iPod.”

    🙂

    Why would you want to when XM can compete directly *against* ipod?

    http://www.time.com/time/gadget/20050413/

    Put a bigger HD in there and it’s basically the iPod with ‘monthly all-access content fees’.

    Also, re my earlier comment –

    “…you can set XM2Go to record up to five hours of XM on up to two different channels when you do have good reception, then play that back while you’re jogging…”

    The ‘offline’ storage of content when not in use is what i was talking about.

    My view is we need new copyright architecture ASAP to help ease the move into a decentralized content world…. based on usage is what i’d think would work.

  18. Brought to you by the same mentality (RIAA, ASCAP, what’s the difference) who netted a $0 royalty residual by wrecking “WKRP in Cinncinnati” re-runs.

    What is this in reference to?

  19. In later releases of WKRP (DVD?, rerun on cable?) they have cut the music that the deejays played in the show. I haven’t personally witnessed this, but a friend was complaining about this this winter when ‘KRP came up. It does seem like a mutilation.

    I am more disappointed that they made the music licensing rights for 16 Candles into a big mess to the point where there seems to be no definitive version of that movie amymore (my 2d favorite).

  20. It is legal to record regular radio with a cassette and Cable TV with a VCR, isn’t it? I don’t see how this can be viewed differently.

    As far as I know there is nothing that says I have to destroy my copies once I cancel the cable.

    That’s really the only reason I have heard/read that justifies re-fighting the Betamax case.

    Wasn’t it already re-fought with DAT?

    wrecking “WKRP in Cinncinnati” re-runs

    Truer words were never spoken. Hold me closer tiny dancer.

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