Attorney: RIAA Suit Against XM Is All About Control

This week's lawsuit by the recording industry against XM Satellite Radio is all about who controls how music is listened to and the cost for providing users with more control, an intellectual property attorney who specializes in such matters said Thursday.

The Recording Industry Association of America (RIAA) Wednesday sued XM for giving users the ability in new devices such as the Pioneer Inno and Samsung Helix to record music received over the satellite radio service. The RIAA, which represents major recording labels, said that XM's new service induces its subscribers to infringe on music copyrights.

The real issue, said Kraig Baker, an attorney with the Seattle law firm Davis Wright Tremaine, is control.

"There's always been a difference between radio and CDs," Baker said. "If you're a consumer listening to a radio station, you don't get to manage that service." In other words, listeners can't control which songs they hear and they can't save songs and listen to them when they want. For more control, licensing fees traditionally have been higher, Baker noted.

"My guess is that XM is saying that (the devices) are no different than TiVo, and the user has no more control other than they can skip certain songs," according to Baker. That would argue against higher fees for that recorded music, according to Baker.

On the other hand, Baker noted that the recording industry seems to be saying that the devices do give users far more control since it gives them the ability to assemble a permanent library of music that they can listen to when they want. That, in turn, indicates higher licensing fees are required.

This case has already served as a flash point in the public debate about how artists are compensated for their efforts. The Electronic Frontier Foundation (EEF) on its Web site strongly sided with XM, saying that the recording industry is trying to expand the definition of what illegal distribution means.

Fred von Lohmann, a senior staff attorney for the EEF, wrote on the group's site that the damages that the RIAA is seeking are excessive and would have a "chilling effect on innovation." He noted that the RIAA may well be trying to get XM and its users to pay a second time for music that has already been licensed. Baker said that it's just a matter of figuring out how to fairly compensate artists and their recording labels, a problem exacerbated by new technology such as the Pioneer Inno and Samsung Helix.

"It's a real struggle in terms of where to draw the line and real pressure on the RIAA from their member labels to create some sort of predictability," Baker said. This is a problem that other types of content providers will have to face sooner or later, according to Baker.

"This whole issue gets right to the heart of the digital era.," Baker said. "The music industry is the first to confront this problem problem because it's easier to copy a song than a movie and there's a greater tradition of portability. At the end of the day, though, you have a lot of people trying to protect traditional models of production and distribution."