[Infowarrior] - Here we go again: XM sued for copyright infringement

Fri Mar 23 02:23:45 UTC 2007

Music publishers accuse XM of copyright infringement

By Anne Broache
http://news.com.com/Music+publishers+accuse+XM+of+copyright+infringement/210
0-1047_3-6169844.html

Story last modified Thu Mar 22 18:06:03 PDT 2007

An association of music publishers late on Thursday filed a lawsuit that
accuses XM Satellite Radio of refusing to stop "widespread infringement" of
popular copyrighted songs.

In a complaint filed in New York federal court, the National Music
Publishers Association (NMPA) argues that the satellite radio operator's "XM
+ MP3" music service skirts copyright laws by allowing radio listeners to
make permanent copies of on-air tracks through devices like the Pioneer Inno
player without permission and without properly compensating songwriters.

The service "constitutes pervasive and willful copyright infringement to the
overwhelming detriment of copyright holders, legitimate online music
services and, ultimately, consumers," lead attorney Debra Wong Yang said in
a statement.

The legal action by the music publishers arrives about two months after a
federal judge ruled a similar legal challenge lodged by record labels could
proceed. In that dispute, XM argued that its listeners are legally allowed
to record music off the radio for personal use under the Home Recording Act
of 1992.

Federal courts have upheld users' rights to record music from over-the-air
radio for some purposes. The music industry argues that the "iPod-like"
devices marketed by XM are closer to being music download services akin to
Apple's iTunes Store, which falls under a different copyright licensing
regime, and that they have been cheating musicians out of royalties.

NMPA President David Israelite characterized his organization's legal action
as a "last resort" that followed months of discussions between the entities
over compensation for music creators.

XM spokesman Chance Patterson dismissed the suit as "a negotiating tactic to
gain an advantage in our ongoing business discussions."

"XM pays royalties to writers and composers who are also compensated by our
device manufacturers," he said in an e-mailed statement. "We are confident
that the lawsuit is without merit and that we will prevail."

The music publishers are seeking an injunction that would stop the allegedly
infringing behavior. They are also requesting a maximum of $150,000 in
damages for each work allegedly infringed by XM. The complaint lists more
than 175 well-known songs--ranging from "Let it Be" to "Like A Prayer" to
"That's the Way (I Like It)"--whose rights belong to a number of large and
small music publishers. The group claims those tunes represent a "small
fraction" of those being illegally distributed through the XM + MP3 service.

A controversial recording industry-backed bill in Congress would require
satellite and Internet radio services to restrict the ability of their
listeners to record and replay individual songs. The so-called Perform Act,
reintroduced this year by Sen. Dianne Feinstein (D-Calif.) has been marketed
as a way to ensure that those services pay "fair market value" for the use
of copyright music, but critics, including consumer groups and the
electronics industry, argue that the proposal would unduly limit listeners'
home-recording rights.

The suit could pose an additional hurdle as XM seeks approval of an
estimated $13 billion union with Sirius Satellite Radio. During
congressional hearings on the subject last month, some politicians
questioned how the merged entity would reconcile reportedly different
approaches to copyright matters.