Saturday, March 24, 2007

NMPA vs XM: another tale of copyright claims vs music listening

From page B3 of Friday, March 23's WSJ comes another example of copyright claims asserted in an effort to prevent consumers from listening to music and, likely, of those asserting the copyright ultimately behaving self-destructively.

The National Music Publishers Association, the article says, is suing XM Satellite Radio Holdings over XM receivers' XM+MP3 service, "which allows listeners to store songs they hear on XM and arrange them in playlists."

The NMPA suit claims that XM is thereby "unlawfully reproducing and distributing copyrighted music without paying appropriate royalties," but XM points out that it "pays royalties to writers and composers, who are also compensated by [the] device manufacturers. " The article also says
XM has contended that songs captured and stored on their receivers aren't true sales, in part because they stay on the radio only as long as the owner remains a subscriber; also they can't be moved...onto a computer or another music device. Legally, XM has said, the recordings are little different from those taped onto cassettes from the radio for personal use, which is permitted by law.

Actually, the two facts they note just before the mention of the cassette argument seems to indicate a marked difference between this and recording to cassettes--but a difference that's advantageous here to XM. Once I record a song off the radio onto a cassette tape, I have that recording indefinitely, possibly for years, without having to worry about maintaining any kind of connection to the corporate entity from which I recorded it. Moreover, I can play that tape in any cassette tape player owned by me or anyone else. There's a great deal more flexibility and less restriction to the use of the recording on a cassette tape. If that's legal, I'm not sure how NMPA can argue that XM's functionality with this has any less legality.

Apparently, the NMPA's disagreement entails "saying users get to use and store the songs recorded with the devices just as if they owned them." How? Given the restrictions XM described above, it's not clear at all how that is, and while there are two vague claims by the NMPA's president and CEO that the "devices go well beyond...radio transmission" and "replace the need to buy music," he gives no evidence at all, that the article quotes, for either those claims or the initial claim in this paragraph.

I think NMPA would probably like to see the whole situation continue but with them getting a lot of money out of it, but what if the suit were to drive XM to abandon the XM+MP3 service altogether? Not only would XM and their consumers lose, but so would the members of the NMPA--XM has pointed out that "the devices encourage its subscribers to buy songs they like, allowing them to bookmark favorites and facilitating digital sales with its partner Napster Inc.; buying the song allows users to transfer it to computers or other music players." If someone wants to play a saved song anywhere other than on the XM player itself, they have to buy it. And they will want to listen to it elsewhere, and they will therefore buy it, because they only stored it in the first place because they really like it a lot. The service is actually a terrific marketing tool to sell more songs, creating greater revenue for the NMPA members than if there were no XM+MP3.

I'm interested in arguments on behalf of the NMPA, but I'm pretty sure I really want XM to win this.