Media & Entertainment Law

XM + MP3 player infringement case proceeds

By Cathy Kirkman

XM Satellite's motion to dismiss was denied last Friday in Atlantic v. XM Satellite, the copyright infringement case brought by record labels over the XM + MP3 player.   The ruling is here.

XM Satellite sought to dismiss the case on the grounds that its MP3 player is exempt from infringement claims under Section 1008 of the Audio Home Recording Act, which provides:

"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 [DARD], a digital audio recording medium, … or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog recordings."

The court held that this does not immunize XM Satellite from infringement claims based on operation of its satellite subscription music service in conjunction with the MP3 player functionality -- rather only from infringement claims for selling the device itself:

"[U]nder the AHRA, XM is protected from suit based on actions taken in its capacity as a distributor of audio recording devices, but it is not immunized from suit based on its conduct as a satellite radio broadcaster, or from suit based on its actions as an XM + MP3 content provider."

 "The question presented here is plain: where the conduct alleged in the Record Companies' Complaint falls within the ambit of conduct protected by the AHRA.  The Court finds that because of the unique circumstances of XM being both a broadcaster and a DARD distributor and its access to the copyrighted music results from its license to broadcast only, that the alleged conduct of XM in making that music available for consumers to record well beyond the time when broadcast, in violation of its broadcast license, is the basis of the Complaint, and being a distributor of a DARD is not.  Thus, the AHRA, on these facts, provides no protection to XM merely because they are distributors of a DARD."

 It's an interesting case in terms of thinking about how the Section 114 statutory broadcasting license and the AHRA device immunity relate to each other.

Full post as published by Silicon Valley Media Law Blog on January 21, 2007 (boomark / email).