Record Companies Pitch Return to Age of Vinyl, Tapes and Typewriters
Record Companies Pitch Return to Age of Vinyl, Tapes and Typewriters
Record Companies Pitch Return to Age of Vinyl, Tapes and Typewriters

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    It's just a guess, but it stands to reason the percentage of people reading this who used a typewriter for anything more than an occasional envelope or form is probably pretty small. Using a typewriter was much better than writing papers of essays by hand, but typewriters had their own challenges. Making corrections was a pain, using slips of white carbon or that white liquid that inevitably lumped up and couldn't be typed over anyway. Just think how much easier it would be if there were a way to correct misspellings, or to erase words, or to pick up and move a paragraph from one part of a document to another.

    Thanks to newfangled technology, we can do all of those things. Consumers have reaped the benefits of a word processing and computers, which allow for the same task done before to be done easier and, one hopes, with better quality. Yet not everyone recognizes the benefits and advances in new technology. At the top of the list is U.S. District Judge Deborah A. Batts, who issued the opinion Jan. 19 turning down a motion from XM Radio to dismiss the case brought against it by the big record companies. The record companies are suing over the ability of XM customers to save music through new devices. There's good background on the case in our blog from Gigi, and from Washington Post columnist Steven Pearlstein.

    In her ruling, Batts seemed to want to leave recording technology frozen in the days of the typewriter, or in this case, of the cassette player or tape recorder. The record companies suing XM claimed that the satellite radio's service was more akin to a download service than simply recording music because users had the right to set a recording device ahead of time and to manipulate the songs that were captured.

    Here is Batts' take: “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.”

    What is manifestly apparent is that technology changes the ability of people to do the same task, and it's not at all apparent that there's a threat here. Recording is recording, and recording for personal use is legal. The judge, at least in the context of a motion for dismissal, bought the record companies' argument that satellite radio is a “digital download service” because XM subscribers have can make copies of music they want to save from the service to which they subscribe.

    The record companies said that by saving songs for later listening (but not distributing), XM subscribers won't buy “authorized digital copies of songs” for their own use. The judge agreed, saying that music recorded from XM is the same as “any other, purchased music download,” the judge said.

    There is one legal nicety that has to be observed here. In a motion to dismiss, the judge has to take at face value every allegation made by the party bringing the suit. The record companies call XM a download service, so for the purpose of this argument it is. It's like being accused of strangling your cat, even if you don't have a cat. One assumes for this purpose that you do have one.

    Let's again point out that recording from a music service is legal. It doesn't matter whether you listen now or later, or can separate out artists or songs. XM pays the record companies for the right to broadcast the songs. The record companies don't need to give their consent for songs to be recorded. The judge wrote that while XM's license “would permit consumers to record from live broadcasts, that does not extend to permitting consumers to record the music, whether or not heard at the time of broadcast, for as long as they pay XM the monthly subscription fee.” It's the Audio Home Recording Act that allows it.

    It's discouraging that the recording industry doesn't get it. Music lovers are turning away from terrestrial radio and are turning to satellite for what they can't hear on all of the homogenized stations. Satellite is another outlet for the music. Unfortunately, the industry can't see what satellite radio does to help them. Instead they headed to court, as part of their strategy to force XM into a new negotiating position on music licensing, putting consumer benefits and innovation at risk in the process.

    XM should propose a deal: They will limit what their receivers can do if the record companies agree to go back to making vinyl records to be played on hand-cranked record players. If freezing technology is good for one, it's good for all. Perhaps the record companies will find their comfort zone there, and we can go back to cassette players.