Just the Same Old Song: Music Publishers Sue XM
Just the Same Old Song: Music Publishers Sue XM
Just the Same Old Song: Music Publishers Sue XM

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    A group of music publishers (EMI Music Publishing, Warner/Chappell Music, Sony/ATV Music, and Famous Music) has lined up a lawsuit against XM for it XM+MP3 players. This suit follows the same lines as a lawsuit filed by the record labels: it accuses XM of not paying for a license to distribute copies of the music–in other words, the plaintiffs think XM should pay as though it were selling downloads, in addition to paying fees for broadcasting.

    The same objections can be raised to this suit as can be raised for the earlier lawsuit. XM is a radio-type service, and already pays a license fee to songwriters each time it broadcasts on of their songs on its network. It also pays money to artists each time one of its recording-capable players is sold. Now Songwriters want to have XM pay a third time, as though it were an iTunes-like operation, just because some of its players are capable of recording broadcasts.

    It's understandable that the songwriters and record labels want an additional fee–they are, after all, profit-making enterprises. It also probably strikes them as fair that every time one of their products is used in a different way, they should get more money. But a look at examples throughout the history of copyright shows that that just isn't how it works.

    Broadcasting a song that can be recorded is hardly analogous to providing the listener with a copy of it. We can already see the difference in how the law treats traditional radio broadcasters. Radio stations pay songwriters to play songs over the air; whether or not someone records the song doesn't affect what the broadcaster pays.

    The plaintiffs say that XM is different, since it provides the recording players as well as the broadcasting service. I don't see how that changes the landscape at all. If a radio broadcaster sold radios with tape decks (and I don't see what would prevent them, other than the increasing rarity of the cassette format), I think anyone would be hard-pressed to find a judge (or a random person on the street) who would think that the radio station would therefore have to pay an additional fee to the copyright owners.

    The plaintiffs then say that this is different, because it's digital. They insist that it's a “perfect copy,” unlike an analog recording off of FM radio, and that makes it so much more dangerous.

    If that's the case, then digital cable providers better watch out. The minute you sell or lease a DVR with your service, the MPAA's going to come after you for selling their movies. How dare your innovative technologies compete with existing DVD sales!

    The fact of the matter is, copyright law grants creators limited rights to control the usage of their works. It doesn't mean that every single subsequent usage of a work can be lined with toll gates to fine users and device makers. We don't expect money to flow to the original author when we lend a friend a book or a CD. The copyright owners would have us believe that that's purely a question of enforceability. The law, they would say, doesn't cover this because it'd be futile to police that. Now, with the advent of DRM, it's possible to charge you for everything.

    But it's more than just a lack of technology that allows us to lend copyrighted material to friends. It's the law's recognition that some uses of works should be encouraged, not fined. Our culture is created by sharing media and content–discussing it around the water cooler, sharing ideas about it, sharing and lending the content itself and even remixing it. Charging extra for each and every one of these uses is counterproductive. It makes criminals out of fans, scofflaws of potential customers, and it deadens the resonance a work might have had, by restricting its spread.

    So as the publishers get in line behind the labels in their lawsuit, getting in line for their extra piece of change, they'll be making it increasingly clear that they just don't get it.