Advanced Copyright Issues on the Internet - Fenwick & West LLP

noncommercial copying by consumers of digital and analog musical recordings, relying on theNinth Circuit’s Diamond Multimedia case, discussed in Section III.C.2(c)(1) above. 209The court rejected the defendants’ reliance on the AHRA, distinguishing the DiamondMultimedia case as follows:The facts of the instant case and Diamond Multimedia are markedly different.The activity at issue in the present case is the copying of MP3 files from oneuser’s hard drive onto the hard drive of another user. The Rio in DiamondMultimedia, by contrast, “merely [made] copies in order to render portable, or‘space shift,’ those files that already reside on a user’s hard drive.” 180 F.3d at1079. The difference is akin to a[n] owner of a compact disc making a copy ofthe music onto a tape for that owner’s sole use while away from home versus theowner making thousands of copies of the compact disk onto a tape for distributionto all of his friends. Furthermore, Diamond Multimedia had nothing whatsoeverto do with whether the MP3 files on the owner’s computers themselves infringedcopyrights. Rather, the decision was limited solely to the infringement issueregarding the act of shifting files from a computer to a personal device andwhether that copying was subject to the particular requirements of the AHRA. Inshort, Defendant’s reliance on Diamond Multimedia is entirely misplaced. 210(c) Atlantic Recording Corp. v. XM Satellite RadioIn Atlantic Recording Corp. v. XM Satellite Radio, Inc., 211 numerous record companiessued XM Satellite Radio for contributory, vicarious and inducement copyright liability based onXM’s offering of digital radio broadcast services together with special receivers marketed as“XM + MP3” players that allowed subscribers to record, retain and library individuallydisaggregated and indexed audio files from XM broadcast performances. The record companieschallenged these capabilities as an infringing “digital download delivery service.” 212XM offered several services specifically to XM + MP3 player users that were the subjectof the plaintiff’s challenge. First, while listening to XM programming, an XM + MP3 user couldinstantly record any song at the touch of a button. To facilitate such recording, the XM + MP3player maintained a short-term buffered copy of every broadcast song a user listened to. As aresult, a user could record and store in its entirety any broadcast song he or she heard, even if theuser started listening to the song after it began to play. 213Second, XM provided XM + MP3 users with playlists from blocks of broadcastprogramming which had been disaggregated into individual tracks. XM sent users such digital209210211212213Id. at 648-49.Id. at 649.2007 U.S. Dist. LEXIS 4290 (S.D.N.Y. Jan. 19, 2007).Id. at *6.Id. at *9.- 62 -