Advanced Copyright Issues on the Internet - Fenwick & West LLP

playlists with title and artist information included. The playlists identified all songs broadcastover a particular channel and during a particular period of time. Users could then scroll througha playlist and select which songs to store for future replay, and which to delete. Using thisutility, users could hear and store individual songs without actually listening to XM broadcastprogramming. 214Third, XM provided to users a search function together with “ArtistSelect” and“TuneSelect” utilities that made it easy for a user to find out when a requested song was beingbroadcast. XM would send the listener immediate notice when his or her chosen artists or songswere played on any XM channel. The user could then immediately switch channels and store therequested track onto his or her XM + MP3 player. 215Fourth, the XM + MP3 players enabled users to store the approximate equivalent of1,000 songs recorded from XM broadcasts for as long as the user maintained an XMsubscription. Accordingly, the court found that these songs were effectively leased to the XMsubscriber for as long as he or she maintained status as a subscriber. 216XM brought a motion to dismiss the copyright claims on the ground that it was shieldedfrom infringement actions by Section 1008 of the AHRA because it was acting as a distributor ofa digital audio recording device (DARD) immunized by the AHRA. The court first turned towhether the XM + MP3 players constituted a DARD. The plaintiffs argued that they did not,citing the Ninth Circuit’s decision in Recording Industry Ass’n of Am. v. Diamond MultimediaSys., 217 which held that the Diamond Rio device at issue was not a DARD because it could notmake copies from a transmission but instead could make copies only from a computer hard drive,which is exempted under Section 1001(5)(B) of the AHRA. The court distinguished the facts ofthe Diamond case, noting that the XM + MP3 players could receive from transmissions and werecapable of copying without an external computer or computer hard drive. 218 “Accordingly, atthis stage of the proceeding, relying on plain meaning statutory interpretation and the definitionof a DARD contained in Diamond, until proven otherwise by means of discovery, the Courttreats the [XM + MP3 players] as DARDs.” 219The court next turned to whether the AHRA offered XM complete immunity from theplaintiffs’ copyright claims. XM argued that, because it was a distributor of DARDs, it did havesuch immunity. The court rejected this argument, noting that, while Section 1008 would protectXM from suit for actions based on the distribution of DARDs, such protection would not act as awholesale, blanket protection for other conduct that XM might be engaged in beyond suchdistribution. In particular, XM’s acts as a satellite radio broadcaster could form a separate basisfor copyright liability. Indeed, the plaintiffs’ complaint made clear that their claims of copyright214215216217218219Id.Id. at *9-10.Id. at *10-11.180 F.3d 1072 (9th Cir. 1999).XM Satellite, 200 U.S. Dist. LEXIS 4290 at *14 n.4.Id.- 63 -