Q: When is a “download service” not a download service? A: When it’s a radio.
Q: When is a “download service” not a download service? A: When it’s a radio.
Q: When is a “download service” not a download service? A: When it’s a radio.

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    Back in May, the major record companies sued XM Radio over the new combination of satellite radio receiver and MP3 player. Back in May, the nine biggest labels accused XM of running a “digital download service” in disguise, for which XM hasn't paid.

    At the time, we weren't impressed with the suit. As Gigi noted at the time, this is about the money — a royalty dispute between the record companies and XM.

    Now, XM, backed up by the Consumer Electronics Association and Home Recording Rights Coalition, has filed its formal papers with the U.S. District Court in New York City, and set out why a radio is not a download service. And even if XM's service was a download, there is the matter of the Audio Home Recording Act (AHRA) from 1992 that allows recording to begin with. You can read the filings from XM and HRRC here.

    To the record companies, what XM provides goes “far beyond the traditional radio broadcast.” Really? The XM pleading goes into exacting, owners-manual detail on how to operate their new device, called the “inno.” If you want to record a song, you push a button. You can program it to record a certain channel, at a certain time, just like a TiVo.

    However, at least with a TiVo, you can record from an on-screen guide, which has summaries of programs. Satellite services can't even do that, thanks to the record companies. It actually says in the copyright law that satellite companies can't publish “an advance program schedule or prior announcement the titles of the specific sound recordings or phonorecords embodying such sound recordings to be transmitted.”

    Heaven forbid you should know what songs are going to be played during your favorite program. That could lead to theft! As the record companies put it in their filing in May, because XM customers can store songs, “XM subscribers will have little need ever again to buy legitimate copies of [record companies] sound recordings.”

    On the other hand, such a service might stimulate the demand for music sales, as one participant in a Washington Post online chat said the other day. The chat was hosted by Post writer Steve Pearlstein, who write a very critical column about the record labels' lawsuit. In fact, in the chat, he told someone from RIAA that their tactics were “thuggish and abusive.”

    But we digress. One fundamental issue in the XM court filing is how their service is now a download service, what the law calls an “interactive service.” It's not one because the subscriber has no choice in what music to hear. An XM subscriber “hears only what XM chooses to play. An XM subscriber cannot order a particular song from XM for her inno.”

    That's the crucial difference between a radio and a download service. Consumers control the download service, which gives you the song you want when you want it. On the radio, even one with the variety of an XM or Sirius, the broadcaster is still in control. The only difference here is that you can do more with the song than simply put it on a tape. You can delete ones you don't want, and put the others in some sort of order. What you can't do is take the music off the “inno.” There's no theft or piracy involved.

    And should we need to remind the recording industry of the AHRA? By every argument imaginable by everyone except the recording industry, what we do with music from XM, and the device with which we do it, are covered by the law, which allows for copying of digital transmissions for private use rules out lawsuits against digital audio recording devices.

    The recording industry should know this. They helped to write the law. The industry likes the part of the law that requires royalty payment on each device, which XM pays. But they have forgotten about the protections for consumers.