It seems the suit by various record labels against XM is going to trial. Earlier today U.S. District Judge Deborah A. Batts found sufficient evidence to allow the case to move forward. The labels' case is that XM, with devices that allow recording and archiving of music, is evading its obligation to pay for a download license; XM currently only pays for a performance license, which covers its musical streams.

As AP reports, in refusing to throw out the case, the Honorable Judge Batts sounded very much like the recording industry in arguing that a) XM is financially benefitting from these players, and b) the Audio Home Recording Act doesn't apply:

“The record companies sufficiently allege that serving as a music distributor to XM + MP3 users gives XM added commercial benefit as a satellite radio broadcaster,” Batts said.

Although XM argued in court papers that an XM + MP3 player is much like a traditional radio-cassette player, the judge said “it is not.”

“It is manifestly apparent that the use of a radio-cassette player to record songs played over free radio does not threaten the market for copyrighted works as does the use of a recorder which stores songs from private radio broadcasts on a subscription fee basis,” she said.

For a complete summary of the arguments on both sides of this case, read the transcript of a Congressional Seminar held by The Progress & Freedom Foundation last year. I moderated a panel featuring the RIAA's Mitch Glazier, CEA's Michael Petricone, DiMA's Lee Knife and recording artist rep Christian Castle.

posted by Patrick Ross @ 4:00 PM | Access: Commons, Fair Use, Orphan Works, Public Domain, Markets: Business, Investment & Innovation

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