But I don't think XM has done this -- the law specifically permits time-shifting of content, and that is ALL this device does. You cannot get the content OFF of the device, and if you stop paying a subscription fee, the content is inaccessible. It is, effectively, a radio that can received content now and listen to it later. This seems like a fairly good definition of "time shifting" to me which is presumably "fair use".
I would suggest that both of you actually read the complaints of the plaintiff.
Both of you are rambling on about items that are not pertinent to the complaint.
You are both mimicing XM's complaints. Which XM pleaded with the court that they (XM) are shielded from infringement actions by the AHRA.
So called "fair use"
Section 1008 of the AHRA states
Prohibition on Certain Infringement Actions. Which provides that.
"No action may be brought under this title alleging infringement fo 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 devise.. for making digital music recordings or analog musical recordings."
XM argued that the Plantiffs' suite should be barred because XM is simply a distributor of a Digital Recording Device. According to XM, the merits of its dismissal motion were based on whether the Inno, Helix, and Nexus qualify as DARDs, which the court recognized that the do qualify.
But, the court pointed out that the complaints registered by the RIAA have nothing to do with XM's contention that they are immunized from the suit because they are simply a distributor of a DARD.
The major point argued by the RIAA is that while the AHRA allows "fair use" copying of off air radio for "noncommercial purposes".. The process where XM allows the off-air copying for "time-shifted" playback at a later time is not a noncommercial function as implemented by XM.. You see.. A user is protected by "fair use" for making a recording off of their satellite radio.
However, by the process of allowing the user to only listen to this Audio Content as long as they pay a monthly fee to XM eliminates the AHRA "fair use" protections. And thus a "commercial benefit" is obtained by XM.
Here is the exact RIAA complaint.
"the sound recording owned by Plantiffs and unlawfully distributed by Defendant include some of the most commercially successful recordings in the world. Defendant is thus seeking to capitalize upon the popularity of Plaintiffs' sound recordings in order the attract and retain the maximum number of XM subscribers.
The court continues:
Although XM does not explicitly refute Plaintiffs' claim that being able to deliver music content for storage on a DARD provides them with "added commercial benefit". XM suggests that an XM +MP3 player is "much like a traditional radio/cassette player" It is not
So while the consumer may be recording the satellite radio content for noncommercial uses, XM reaps commercial benefit from this recording ability by way of, in effect, "leasing" the content to the end user on a monthly basis.
Which the RIAA (correctly, in my opinion) argues ... XM does not posses the license to do.
And so it goes,
PCSTEL |
